author: BOUTALL, Judge.

text:
    The COUNCIL OF the CITY OF NEW ORLEANS: Joseph Giarusso, Frank Friedler, Jr., Michael Early, Sidney Barthelemy, Broderick Bagert, Phillip Ciaccio, Individually and as Members of the Council of the City of New Orleans, Louisiana Health Services and Indemnity Co., Inc. v. Honorable Ernest A. MORIAL, Mayor of the City of New Orleans, Reynaud J. Rochon, Chief Administrative Officer of the City of New Orleans and Jack A. Parker & Associates, Inc.
    No. 11252.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.
    David A. Marcello, Executive Counsel to Mayor, New Orleans, Joseph H. Hurndon, Deputy City Atty., Marc. G. Shachat, Asst. City Atty., Salvador Anzelmo, City Atty., for defendants-appellants.
    Martzell, Montero & Lamo the by John R. Martzell, New Orleans, for City Council, plaintiffs-appellees.
    Bronfin, Heller, Feldman & Steinberg, New Orleans, for Louisiana Health Services & Indemnity Co., Inc., plaintiffs-appellees.
    Tucker & Schonekas by Russell J. Schone-kas, Arthur S. Mann, III, New Orleans, for Jack A. Parker & Associates, Inc., defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is an appeal by the defendants-appellants,' the Mayor of the City of New Orleans, et al. from a judgment of the trial court declaring that the action by the defendants-appellants in negotiating a contract with Jack A. Parker & Associates, Inc. for administrative services in connection with the City’s Self Insured Employee Health Care and Hospitalization plan was not in accordance with the public bidding laws and that such a contract should have been the subject of public bidding as provided by the City of New Orleans Home Rule Charter provision § 6-307(5).

Beginning on January 1,1978, the City of New Orleans became self-insured as to health care coverage for its employees under a plan which it had formulated. Administration of this health care plan was then supplied by Louisiana Health Service & Indemnity Company, (hereinafter referred to as Blue Cross), which formerly enjoyed a position as insurer for the city prior to January 1, 1978. On January 25, 1979, Blue Cross was informed by the city through Reynaud J. Rochon, Chief Administrative Officer that its services would be terminated effective March 31, 1979. This termination was in accordance with the terms of the contract between the parties.

On April 1, 1979, the city entered into a contract with Jack A. Parker & Associates, Inc., wherein the latter was to perform the same administrative services under the health care plan which had previously been performed by Blue Cross. This contract was entered into pursuant to negotiations between Parker and the city. No public bidding was advertised nor held during the formulation of this contract.

On March 27, 1980, six members of the New Orleans City Council, individually and as members of the council, and Blue Cross brought an action for declaratory judgment and injunctive relief against Ernest A. Mor-ial in his capacity as Mayor of the City of New Orleans, Reynaud J. Rochon, as Chief Administrative Officer, and Jack A. Parker & Associates, Inc. After exceptions of improper cumulation of actions were maintained, plaintiffs abandoned the request for injunctive relief and proceeded only on the declaratory judgment proceedings. They sought a declaratory judgment declaring that the contract for administrative services for the city’s health care plan for its employees is covered by the public bid laws as set forth in the Home Rule Charter of the City of New Orleans and the laws of the State of Louisiana, and must be secured by public competitive bidding according to law. The effect of this was to seek to have the contract declared void and public bidding held for the services provided therein.

The trial judge in his reasons for judgment thoroughly considered the problems involved in such a contract, and after weighing the problems in correlation to the efficient and proper administration of the city government for the best interest of its citizens and the operation of the public bidding law, also designed to protect the public interest, found that the better means to accomplish the public good would be by public bid. Accordingly the judge declared that the contract for administrative services for the Employees Self-Insured Hospitalization program was covered by the public bid law set out in the Home Rule Charter in the City of New Orleans, and decreed that the contract now be placed under proper procedural aspects for public bid. This appeal followed.

Initially we point out that there is no issue in this case as to compliance with the contract by Parker, nor is there issue that the city administration acted in anything but good faith in an attempt to achieve the maximum benefits for its employees and the interest of its citizens. The sole issue is whether this contract, as a matter of law, is one which is required to be advertised for public bidding under the Home Rule Charter, or whether it is excepted from those provisions. The pertinent part of the charter is Section 6-307(5):

“(5) Except in the purchase of unique or non-competitive articles, competitive bids shall be secured before any purchase, by contract or otherwise, is made or before any contract is awarded for construction, alteration, repair or maintenance or for the rendering of any services to the City, other than professional services, and the purchase shall be made from or the contract shall be awarded to the lowest responsible bidder after advertisement prescribed by ordinance or by applicable State law.” (Emphasis added.)

Thus the resolution of this case revolves about the meaning of “professional services” as the basis for determination whether the contract shall be subject to competitive bidding or may be negotiated. Under the terms of the contract, the Administrator agrees to the following:

“A. Provide the City with services for the administration and operation of the Plan. These services will be coordinated by an account executive of the Administrator to help assure an efficient operation of the Plan.
“B. Review the Plan attached hereto at the request the City initially and in connection with benefit revisions, additions and extensions, including underwriting advice and cost estimates and projections.
“C. Assist in the development, design and installation of administrative and record keeping systems.
“D. Assist in the development, design and installation of systems and forms for processing requests for benefit payments.
“E. Assist in the preparation of accounting reports for use by the City in the financial management and administrative control of the Plan.
“F. Process all claims presented by eligible participants for the payment of medical expenses in accordance with the Plan and to pay such benefits if a claim in its judgment qualifies for payment. Claims to be processed under this agreement shall include only claims commencing on and after April 1, 1979.
“G. Provide a monthly accounting of all benefits paid pursuant to this Agreement together with a statement of its service charges for the same month.
“H. Provide claim forms and enrollment forms.
“I. Conduct all necessary claim inquiries appropriate to Plan provisions, including but not limited to coordination of benefits, preexisting conditions, usual and customary expense levels, etc.
“J. Provide verification and/or certification of benefits to purveyors of services.
“K. Deny all ineligible claims with notification to the City.
“L. Provide the City with a printout of all benefit payments and answer all written, telephone and personal claim inquiries from the City employees.
“M. Provide monthly claim reports by line of coverage; i. e., hospital, surgical, etc. in detail.
“N. Prepare and furnish to providers of service required annual information returns in compliance with Revenue Rulings 69-595 and 70-608. The Administrator will print and bear expense of forms.
“0. Establish claim control procedures and claim administration to the same extent as if benefits were totally insured by the Administrator on a conventional group insurance basis.
“P. Bond all employees of Administrator who handle monies or properties of the City.
“Q. Make available for the City’s inspection at all reasonable times the Plan’s claim administration records and files for the City’s participants.
“R. Estimate the amount of unreported claims at the end of each contract year based on claim-lag experience.
“S. The Administrator will provide two (2) hospital identification cards to all Plan participants.
“T. Deal directly with Plan participants with respect to hospital claim submission. Other than hospital claims will be submitted to the Administrator by the City.
“Claim eligibility and certification of coverage to purveyors of service will be based on a monthly roster of participants furnished to the Administrator by the City.”

If these services fall within the definition of “professional services” contemplated by the city charter, the contract forms an exception to the requirement of public bidding necessary for any other service contract. We refer to two previous cases of this court wherein we considered the application of contracts to the charter provisions. In New Orleans Transfer Company, Inc. v. City of New Orleans, 284 So.2d 362 (La.App. 4th Cir. 1973) we reaffirmed the general rule relating to the interpretation of public bidding laws as set out in the case of Boxwell v. Department of Highways, 203 La. 760, 13 So.2d 627 (La.1943) that the public bidding laws were enacted in the interest of and for the protection of the tax paying citizens, and that open competitive bidding is a thing to be desired. In the case of Transportation Displays, Inc. v. City of New Orleans, 346 So.2d 359 (La.App. 4th Cir. 1977) we held that the question as to whether competitive bidding by firms providing services is feasible and is contemplated by the public bidding laws must be determined by the terms of the contract.

With these principles in mind, we have considered the evidence as to the nature of the services required to be performed under the contract requirements. It is apparent that the vast bulk of the services are basically clerical. Much may be performed by persons of high school education and above who have been trained in the various degrees of skill required for claims adjusting and for work of processing the various applications and applying certain rules and regulations leading to a decision to approve or deny claims. A considerable portion of the work is simply clerical in nature. At the same time, it is apparent that there are decisions that cannot be made by employees in the lower echelon who must consult with their superiors and supervisors to ascertain the proper result in questionable claims, or those claims to which the rules do not clearly apply. These supervisors are required to have a higher degree of skill and expertise in handling these claims. Superimposed upon this structure it is necessary to have at least one person of considerable skill and expertise to exercise the function of account executive. It is he who must oversee the formulation of regulations and coordinate the entire operation with the city’s consultants and in accordance with its policies. It is also apparent that there are services to be performed in connection with this contract that can only be answered by professionals such as doctors, or on the insurance side by underwriters or actuaries. However, it is equally apparent that these services form only a small portion of the services contracted for and are usually obtained on a consulting basis in the case of a smaller, independent contractor as here, or furnished in house by other departments of a larger contractor such as insurance companies providing such services.

From the evidence presented, we cannot say that the services provided are exclusively professional or exclusively not professional services. There are no clear-cut guide lines to afford officials a precise determination, and it is apparent from the testimony that officials have had in the past to rely upon their own judgment as to whether such a contract may fall within the exception provided. We note for example the fact that this same basic contract was awarded to Blue Cross at its inception by negotiation rather than public bid. We also consider the testimony of Mr. Terrell, the Deputy Commissioner of Administration for the State of Louisiana concerning the problems that the state had encountered in its attempt to secure efficient administration of public employee health benefit contracts, which served as part of the basis for the enactment of Act No. 772 of 1978, R.S. 39:1481, et seq., setting out the legislative requirements for procurement of professional, personal and consulting services. The evidence in this case shows that the chief administrative officer followed the basic policy established by prior administrations, obtained the approval of the City Attorney’s office for entering into this contract, and negotiated it in good faith with a view of obtaining efficient administration of the plan as well as economy. However, his appreciation of a contract for professional services differs from ours, and we must affirm the decision of the trial court.

In the Transportation Displays, Inc. case supra, we interpret the word “professional” as follows, 346 So.2d 363, Footnote 5:

“5. ‘ “Professional” ’ is not used here to describe the quality of the services or to distinguish the highly proficient from the mere amateurs, but rather denotes a person in a profession which required years of education and service for one to attain competence and which calls for a high order of intelligence, skill and learning.”

Several of the witnesses, and various legal authorities, have proposed definitions of “professional services,” “personal services” and variations on these types of services. As an example, we refer to the definitions in the State Service Procurement Law as defined in R.S. 39:1484:

“(15) ‘ “Personal Service” ’ means work rendered by individuals which require use of creative or artistic skills, such as but not limited to graphic artists, sculptors, musicians, photographers, and writers, or which require use of highly technical or unique individual skills or talents, such as, but not limited to, paramedicals, therapists, handwriting analysts, and expert witnesses for adjudications or other court proceedings.
“(17) ‘ “Professional Service” ’ means work rendered by an independent contractor who has a professed knowledge of some department of learning or science used by its practical application to the affairs of others or in the practice of an art founded on it, including but not limited to lawyers, doctors, dentists, veterinarians, architects, engineers, landscape architects, and accountants. A profession is a vocation founded upon prolonged and specialized intellectual training which enables a particular service to be rendered. The word ‘ “professional” ’ implies professed attainments in special knowledge as distinguished from mere skill.”

Suffice it to say that each definition is important to the end sought to be achieved, and each statute or case must be relegated to its own internal purposes. The city’s charter simply says that “the rendering of any services to the City, other than professional services” shall be subject to competitive bidding. We hold that the present contract requires services the vast bulk of which is services other than professional services as defined in Transportation Displays, Inc., supra, and such a contract can only be let after competitive bidding.

Accordingly, we affirm the judgment appealed from.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Mildred Badie, wife of Nolan Ambrose MARSHALL v. Nolan Ambrose MARSHALL.
    No. 11308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.

      Baldwin & Haspel, Robert R. Rainold, Robert R. Rainold, Jr., New Orleans, for Mildred Badie, plaintiff-appellant.
    Joseph W. Rausch, Stassi & Rausch, New Orleans, for Nolan A. Marshall, defendant-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal concerns the post-marital obligation of support owed by one spouse to another and to their children. The original matter arose when the plaintiff brought several rules against her former husband, defendant-appellee, to make past due alimony executory and for an increase in alimony payments. The trial court rendered judgment awarding to the plaintiff $3,192.52 in past due alimony, together with legal interest from the date of judicial demand until paid and all costs, each party to bear their own attorney’s fees. Also, the trial court fixed the award of future alimony to the plaintiff at $200.00 per month. From this judgment, the plaintiff has appealed, contending both amounts are insufficient.

The plaintiff, Mrs. Mildred Badie, and the defendant, Mr. Nolan Ambrose Marshall, were married on June 16, 1946. Of this relationship three children were born. Marital relations between these two parties broke down in 1958, resulting in a judgment of separation that same year. Subsequently, on July 11,1960, a judgment of divorce a vinculo matrimonii was entered in favor of the plaintiff, based on one year living separate and apart. This latter decree contained several orders, one of which required the defendant husband to pay alimony and child support to the plaintiff in the amount of $155.00 per month and a monthly homestead installment on the family home in the amount of $90.57 for a total payment of $245.57 per month.

The evidence discloses that proper payments were made by the husband, though occasionally delayed, through March of 1973. From that time forward the defendant refused to comply with his obligation of support. Consequently, the plaintiff on May 25, 1979, brought several rules against defendant: a rule for contempt for failure to pay; a rule to make past due alimony executory and a rule for increase in alimony. The trial judge apportioned the prior in globo award of alimony and child support into portions of Va for the wife and % for the children, and, applying the three year prescription, made executory only the sum of $3,192.52 in accordance with those limitations. He dismissed the rule for contempt and fixed present and future alimony for Mrs. Marshall at $200 per month, decreeing each party to pay his own attorney’s fees. Mrs. Marshall appealed assigning error on each ruling.

-I-

The first issue for consideration here concerns the application by the judge of the prescriptive period for past due alimony, which was not pleaded by the defendant. LSA-C.C. Art. 3538 provides a 3 year prescriptive period for such a claim. It states ■in pertinent part: “The following actions are prescribed by three years: That for arrearages of rent charge, annuities and alimony ...”

The exception of prescription is a peremptory one which must be specially pleaded by a party in order for it to be operative. This exception cannot be supplied by the court. LSA-C.C.P. Art. 927; Lawyers Title Services, Inc. v. Boyle, 308 So.2d 479, 481 (La.App. 4th Cir. 1975); Bourgeois v. Ducos, 182 So.2d 539, 543 (La. App. 1st Cir. 1966). Although the plea of prescription may be filed for the first time in an appellate court, it must be presented in a formal pleading prior to a submission of the case for decision. LSA-C.C.P. Art. 2163; Whittington v. Hopfensitz, 321 So.2d 836 (La.App. 1st Cir. 1975). See also Washington v. St. Charles Parish School Board, 274 So.2d 909 (La.App. 4th Cir. 1973) reversed on other grounds 288 So.2d 321 (La. 1974). Finally, argument for application of the exception of prescription in the brief alone is insufficient. State, through Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir. 1979); Scott v. Boh Bros. Construction Co., 195 So.2d 353 (La.App. 4th Cir. 1967).

In applying these rules of law to the case before us, we find the record void of any plea of prescription filed by the defendant-appellee either in the trial court or on appeal prior to submission of the case for decision. Furthermore, argument by the defendant-appellee for this exception in his brief alone is of no consequence. Hence, the trial judge erred in applying the 3 year prescriptive period for past due alimony and we would be in similar error if we applied it. Therefore, the plaintiff-appellant is entitled to an amended decree awarding to her past due alimony for a period of 77 months which represents the period of time between the last payment in March of 1973 and the judgment in August of 1979.

-II-

A second issue raised by these proceedings concerns the validity of the judgment of the trial court in apportioning the 1960 divorce decree, such that V3 of the $245.57 monthly figure awarded, or $81.86, can be attributed to alimony and the remainder to child support. In making this apportionment, the trial court held that the defendant-appellee had discharged his obligation of child support, and that the ex-wife was only entitled to past due alimony in the amount of $81.86 per month instead of the full monthly figure of $245.97. Appellant contends that the trial court committed error in making such an apportionment and in reducing the amount of support owed.

The jurisprudence serves to support the contention of the appellant. It reflects the view that a judgment awarding alimony is a determination of the rights of the parties and it acquires the authority of the thing adjudged. Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947). LSA-C.C.P. Arts. 1841 and 1842. Nevertheless, in another sense, an alimony judgment is not final in that a suit for modification, reduction or termination of this judgment may be brought. Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954), LSA-C.C. Art. 232. Where such a suit is not filed, the alimony judgment may not be changed, unless the award is terminated by the operation of law, as occurs when a wife remarries. LSA-C.C. Art. 160. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir. 1980) or unless the award is suspended by a conventional obligation in the best interest of the child (Dubroc v. Dubroc, 381 So.2d 1236 (La.1980). None of these special circumstances took place here.

Our circumstances are somewhat similar to Halcomb v. Halcomb, supra, wherein the defendant was ordered to pay $100 per week as child support. As each of his four children reached the age of majority, the defendant, of his own volition, reduced the award by $25. Subsequently, the plaintiff filed a motion requesting that the amount of past due child support be determined and made executory. The supreme court held that the defendant had no right to proportionately reduce the in globo award as each child attained majority. This decision was based on the application of the rule which establishes that the award of alimony can only be altered, modified, or terminated by operation of law or when proper suit is brought. The Court stated:

“However, unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction.”
* sk * * * *
“We agree that the wife may no longer institute original proceedings for the support of a child over whom she had custody after the child has reached majority; nor can she seek an increase of an award for the child’s future support after the child has reached majority. But this effect of a child’s majority does not apply to a motion by the mother to whom the award was made for the child’s support to have a child support award in arrears determined and made executory. The latter situation is distinguishable from the former in that an initial suit for support or a suit to increase a past award seeks to initiate a new claim on behalf of the adult child when the law has declared him capable of administering his own affairs and no longer entitled to child support; whereas, the latter situation involves an effort by the party to whom the award is due (the wife, not the child) to have determined and declared executory unpaid sums due as child support in a judgment of court in her favor rendered during the child’s minority.”

Accordingly, the ex-wife was entitled to the entire judgment of past due alimony in the form of child support for the number of weeks that the defendant was in arrears.

Application of the principles cited above to the case before us leads us to the conclusion that the trial judge was in error in apportioning and reducing the amount of the award of support owed by the defendant to the plaintiff. The Halcomb case jurisprudence establishes that the obligation of support does not terminate by operation of law upon the age of majority being reached by the children. The defendant made no attempt to file suit for a modification or termination of the original award of alimony. Therefore, the plaintiff-appellant is entitled to the full award of past due alimony in the amount of $245.57 per month for a period of 77 months for a total of $18,908.89, unless suspended or waived.

-III-

As to waiver of the right to the past due alimony, the defendant-appellee contends that the plaintiff-appellant waived this right by entering into an agreement to terminate the obligation of support owed by the defendant.

Regarding the appellee’s contention, the trial judge held that the parties attempted to negotiate termination of the support obligation owed by the appellee in exchange for the transfer to the appellant of the appellee’s equity interest in the family home, but no agreement was ever reached. A careful review of the record supports this finding. Similarly, we conclude that the evidence does not show a conventional obligation to promote the best interest of the children entitling the father to a suspension as in Dubroc v. Dubroc, supra.

-IV-

A fourth issue for consideration here concerns the award of legal interest due for past due alimony. The plaintiff-appellant contends that the trial court committed error in awarding legal interest beginning from the date of judicial demand until paid, as opposed to making the award from the time when each alimony payment was due.

Under LSA-La.C.C.P. Art. 1921, “the court shall award interest in the judgment as prayed for or as provided by law.” In the case before us, both the interest as prayed for and as provided by law are the same. In the plaintiff-appellant’s rule to make due alimony executory, she prays for interest on the total amount of alimony past due, beginning from the time when each payment was due until paid. LSA-La. C.C. Art. 1938 provides that, “All debts shall bear interest at the rate of 7% per annum from the time they become due, unless otherwise stipulated.” Based on this codal article, interest is due, as provided by law, beginning from the time when each support payment became due. This view is supported by Thompson v. Courville, 372 So.2d 579, 583 (3d Cir. 1979) wherein the court stated:

“In addition to the total arrearage in child support, the appellant is entitled to recover legal interest on each past due installment of child support from the date the installment was due until paid.” Miller v. Miller, 321 So.2d 318, 321 (La.1975).

In applying the principles cited above to the case before us, we conclude that the trial court committed error in awarding legal interest from the date of judicial demand until paid. Therefore, we reverse the trial court’s judgment in favor of an award of legal interest beginning from the date when each installment was due until paid.

-V-

Another issue for consideration is the award of attorney’s fees in connection with a rule to make past due alimony exec-utory. LSA-R.S. 9:305 (AM 1978) provides:

“When the court renders judgment in an action to make past due alimony or child support executory, the court may award reasonable-attorney’s fees in favor of the prevailing party.”

This statute was applied by the court in Thompson v. Courville, supra, wherein the court stated:

“Since no reasonable explanation was given as to why the appellee was in arrears when appellant’s motion was filed, the appellant is also entitled to a reasonable attorney’s fee under LSA-R.S. 9:305. We will fix the fee at $900.”

Based on the foregoing, we conclude that the trial court committed error in ordering each party to bear their own attorney’s fees. Our conclusion is based on a finding that the defendant-appellee had no reasonable explanation for his failure to comply with his obligation of support. Therefore, we order that the defendant appellee pay attorney’s fees in the amount of $1500.

-VI-

A final issue before us concerns the validity of the trial court’s judgment reducing the award of alimony from $245.57 to $200.00 per month. Under Louisiana jurisprudence and statutory law the wife must be without fault and without sufficient means for her maintenance in order to be eligible for post divorce alimony. The word “means” includes both the income and property of the spouse and in recent years the word “maintenance” has been expanded to include not only food, shelter, and clothing, but also reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses and the income tax liability generated by the alimony payments made to the former spouse. LSA-C.C. Art. 160 (as amended 1964); Loyacano v. Loyacano, 358 So.2d 304 (La.1975). Vacated on other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 on remand 375 So.2d 1314 (La.); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Ducote v. Ducote, 339 So.2d 835 (La.1976). LSA-C.C. Art. 160 vests the trial court with discretion in considering the above principles and in deciding if a spouse is entitled to post divorce alimony. Ducote v. Ducote, 339 So.2d 835 (La.1976).

Modification of a post divorce alimony award requires proof, by party seeking the alteration, of a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. This change may be in the obli-gee’s needs or in the obligor’s ability to pay. Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir. 1978) writ denied 356 So.2d 1389 (La.); Roth v. Roth, 353 So.2d 352 (La.App. 1st Cir. 1977); Ducote v. Ducote, supra.

The appellant contends that she is entitled to an increase in the alimony awarded by the trial court from $200 to $680 based on the argument that she is in necessitous circumstances and without means to support herself within the meaning of LSA-C.C. Art. 160 (AM 1979). In rebutting this contention, the appellee denies that the appellant is in necessitous circumstances and further argues that he is unable to pay any alimony.

The record reveals that the appellant is without sufficient means to support herself. Her only assets are a home, which remains a part of the community, and a used automobile. The inheritance she received upon her mother’s death in 1973 was used to support herself during the years when her husband failed to comply with his obligation of support. The plaintiff has virtually no income. She is 53 years old, has only a high school level of education and has not worked for 20 years or more. Furthermore, she suffers from varicose veins and other health problems. Consequently, she is unable to. secure gainful employment.

The record further reveals that the plaintiff has monthly expenditures for her maintenance which well exceed the $200 awarded by the trial court. The plaintiff is required to pay a monthly note on the community home in the amount of $90.57. Furthermore, her expenses for clothing, food, telephone, house insurance, transportation, medical attention and drugs, utilities, household items, and income tax liability generated by the alimony payments, coupled with the house note, establish that $500 per month would be a fair and reasonable award for her maintenance. We conclude that the plaintiff-appellant has met her burden of establishing a change in circumstances in that her monthly expenditures in 1979 were substantially different than those in 1960 at the time of the original alimony award.

Appellee contends that he is unable to pay any alimony. A review of the evidence before us reveals that the defendant-appellee has a gross monthly income of $9,000 from his employment as an insurance agent, his wife’s employment as a school teacher, and rent from income producing property. Moreover, the defendant-appel-lee has assets which include a home valued at $160,000, rental property valued at $180,-000, two cars, a boat, life insurance totaling $340,000, stock in the Bank of New Orleans and ownership of a small corporation. On the other hand, the evidence also reveals that the defendant-appellee is a named defendant in two lawsuits, each of the properties and the insurance are mortgaged, and he supports 4 children by his second marriage. In consideration of all these things together, we find that the defendant-appel-lee does possess the ability to pay alimony.

Based on the foregoing we hold that the trial court abused its discretion in awarding only $200 per month in alimony to the plaintiff-appellant. We further hold that an award of $500 per month would be a sufficient sum for the maintenance of the plaintiff-appellant.

For the reasons assigned above, the Judgment of the trial court is hereby amended insofar as to provide past due alimony exec-utory in the amount of $18,908.89, plus legal interest beginning from the date when each alimony payment was due until paid, plus $1500 in attorney’s fees to the appellant and to provide future alimony in the amount of $500 per month, and, as amended, the judgment is affirmed.

AMENDED AND RENDERED.

      . It should be noted that, the,
      “Right to receive alimony in a lump sum is not waived by the plaintiff’s failure to make periodic demands on the defendant.” Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (La.1950); Halcomb v. Halcomb, 352 So.2d 1013, 1015 (La.1977).

      . Spouse not obligated to sell family home in order to be entitled to alimony. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Martinez v. Bordelon, 371 So.2d 1280 (La.App. 3rd Cir. 1979); Phillpott v. Phillpott, 321 So.2d 797 (La. App. 4th Cir. 1975); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975).

      . In determining divorced husband’s property and earnings for purposes of determining alimony, income from all sources, including that of the second wife, should be taken into consideration. Stolier v. Stolier, 357 So.2d 1334, (La. App. 4th Cir. 1978). Writ denied, 359 So.2d 621 (La.).


author: BOUTALL, Judge. SARTAIN, Judge,

text:
    Becky CUNNINGHAM, as natural tutrix of the minor children, Chris J. Cunningham and Tina Cunningham, on behalf of their father, Joseph E. Cunningham (Deceased) v. AMERICAN MUTUAL INSURANCE COMPANIES and David Campbell Plumbing Co.
    No. 11491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.

      George C. Stringer, Jr., Harahan, for plaintiff-appellee.
    W. Marvin Hall, Trial Atty., Hailey, McNamara, McNamara & Hall, Metairie, for appellants.
    Before BOUTALL, BARRY and SAR-TAIN, JJ.
   BOUTALL, Judge.

This appeal is by an employer and its insurer from a judgment awarding workmen’s compensation benefits to the minor children of the deceased worker. The issues presented are the causal connection between the decedent’s death and his employment and the extent of the dependency of the two minors together with the appropriate amount of the award. We affirm the entitlement to benefits, but we amend the award.

Joseph E. Cunningham was a plumber employed by David Campbell Plumbing Company for approximately two years prior to his death at 29 years of age. On the morning of May 31,1976, he was ordered to proceed to an apartment located above a bar on Tulane and Galvez Avenues in the City of New Orleans to repair a toilet. Shortly thereafter his employer received a call from the apartment occupant informing him that something had happened to Cunningham and Maurice McDonald, one of the owners, responded. He found Cunningham on the floor in the bathroom at the base of the toilet in a semi-conscious condition, moaning and unable to talk. He called for emergency help and had Cunningham brought to Charity Hospital.

At Charity Hospital it was determined that Cunningham had sustained a sub-arachnoid hemorrhage caused by an aneurysm of the anterior communicating (cerebral) artery. Cunningham was treated conservatively until it was thought that his condition had stabilized to a point that surgery would be justified. On June 17, 1976 surgery was performed but difficulties were encountered because of the size of the aneurysm, and Cunningham got progressively worse until he died on June 24, 1976 because of arterial spasm. Suit was brought by his divorced wife as natural tutrix of Cunningham’s two minor children alleging they were totally dependent upon him and thus entitled to the death benefits payable under R.S. 23:1231 and 1232.

The first issue is whether Cunningham’s death falls within the provisions of Louisiana’s Workmen Compensation Act so as to entitle his survivors to the benefits contemplated thereunder. Both the facts surrounding Cunningham’s accident and the medical evidence as to causal relationship are sparse, presenting no easy solution to the issues. The trial judge held that the death was a result of an injury sustained while the employee was in the course and scope of his employment and relied strongly upon the case of Francis v. Gerlach Meat Company, Inc., La.App., 319 So.2d 534, pointing to a strong similarity in factual situation therein, and quoting extensively from the discussion on page 536. The judge concludes his quotations with the following:

“ ‘3) The question then becomes not accident, but causal connection between the work-related activities of the employee and the thing (in this case the rupture of the aneurysm) that resulted in death or disability. See Malone, Louisiana Workmen’s Compensation Law and Practice, sec. 212, at Supp. page 75. Essentially this is a question of fact, the primary determination of which rests with the trial judge.’ ”
“The court therefore concludes that Mr. Cunningham died as a result of an injury sustained in the course and scope of his employment.”

The facts that caused Cunningham to be found lying on the floor semi-conscious next to the toilet he was to have repaired cannot be established with preciseness. Cunningham was working alone, and his condition resulted in a state of confusion such that apparently he was never able to relate exactly what happened. The apartment occupant was apparently not present at the time, and was not called as a witness. McDonald, the part owner of Cunningham’s employer got there after the event and understandably was busily occupied in attempting to save Cunningham’s life and could not testify with preciseness. However from the testimony that exists, we have been able to make some reasonable deductions, which we believe led the trial judge to his conclusions.

This job was Cunningham’s first job of the day, and he had driven the truck to the premises, had obviously spoken with the apartment occupant to determine which toilet was in need of repair, and had climbed the stairs to the apartment, carrying with him some tools. It is not known whether Cunningham carried with him his entire tool box, the witness having first testified that there were some tools on the floor near Cunningham’s body, but later on direct testimony indicating that he saw no tool-box and did not know whether any tools were about. McDonald could not recall the exact nature of the repairs that Cunningham was ordered to make, nor was he able to say whether any effort at these repairs had been made. He later sent another employee to finish the repairs, but that employee was not called as a witness. However, from McDonald’s testimony that there were tools on the floor near Cunningham’s body, it is reasonable to conclude that he was actually engaged in the repair of the toilet, and we point out that he had driven to the premises and at least had walked up the stairway carrying some tools, also in the course and scope of his employment. We agree with the trial judge that these facts would support a finding that the employee sustained a ruptured blood vessel while on the job and while actually performing physical labor for his employer as was found in Francis, supra.

We quote the following from the case of Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975) at page 39:

“2-4] The only remaining issue for determination is whether plaintiff proved by a preponderance of evidence that the fatal heart attack which occurred on the job was caused by decedent’s employment. Difficulty in proving causation arises from the fact that a pre-existing heart infirmity can produce disability at any moment irrespective of any outside influence. However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Ferguson v. HDE, Inc. and Bertrand v. Coal Operators Casualty Company, supra.”

We do not perceive any basic difference between a heart attack and the rupture of the aneurysm. Of the two doctors who treated Cunningham at Charity Hospital, only the one could be found, and his deposition was taken in Jackson, Tennessee, and filed in the record by stipulation at trial. Dr. Glenn Barnett likened an aneurysm to a weak spot on an inner tube, which when extra pressure is placed upon it, may rupture and leak. Hypertension increases the possibility of leakage and stressful situations are frequent causes of bleeding. He related that a common time for the aneurysm to bleed is during sexual intercourse or after having a bowel movement. At the same time he noted that there are many people who wake up with them in the morning, who have a headache or who are simply walking down a street or driving a car, so it is impossible to say what actually happens except that the vessel gets weak enough and the blood comes out. At this point we must note of course that the decedent had actually driven his employer’s truck to the premises at which he was to accomplish his allotted job.

The defendants place considerable stress upon a hypothetical question asked the doctor, including the facts that “he was employed as a plumber. He was called upon to change out some parts of the toilet tank by his employer. I want you to assume there was no heavy lifting, bending, or unusual exertion involved”, asking the doctor if he could be “certain with any degree of medical certainty that this sub-arachnoid hemorrhage or the condition that led to his demise was in any way caused by his employment situation that I have related.” The doctor answered “As you related to me, my answer would be it would not have caused the sub-arachnoid hemorrhage.” Primarily, we note that no one is sure whether this man was undergoing any heavy lifting, bending, or unusual exertion. Basically however, when one considers the doctor’s testimony as a whole, it becomes apparent that this doctor is of the opinion that the rupture of an aneurysm of this sort could occur at any time, particularly one as large as was found to exist here, and that any factor may trigger the rupture and bleeding, and that even some unknown factor could trigger it, as witness his statement that the hemorrhage sometimes occur to people who are in bed or engaged in little or no physical activity. We are of the opinion that based upon such testimony, the trial judge could reach a reasonable conclusion that this worker’s job related activities caused the rupture. Although a myriad of things may cause the rupture of an aneurysm, this man’s rupture took place while he was actively engaged in his work, and we cannot say that it was not caused by stress incurred due to his work.

Accordingly, we conclude that Cunningham’s death is work-related, caused in the scope and course of his employment, entitling his survivors to the death benefits provided in R.S. 23:1231.

We now pass to a consideration of what those benefits should be.

At the time of his death Joseph Cunningham left two minor children, Tina Marie, 8, and Christopher Joseph, 4. Cunningham was divorced from the children’s mother, who had their custody. While the children lived with their mother, they spent most weekends from Friday through Sunday with their father. Cunningham provided all of the recreational facilities for them; provided clothing, medical care and support. Cunningham carried the children on his Federal Income Tax returns as dependents, and the evidence is quite clear that he did indeed furnish them the support necessary for their wellbeing. Accordingly, we find that the two children are the legal dependents of the employee, actually and wholly depending on his earnings for their support at the time of the death under the provisions of R.S. 23:1231.

There being two minor children in this case, the payment to them is computed and divided amongst them on the basis of 46V4 percentum of the employee’s wages. R.S. 23:1232(5). Cunningham was paid at the rate of $5.75 per hour for a 40 hour week, or a weekly wage of $230.00. 46.25% of that sum equals $106.37. This is in excess of the maximum provided in R.S. 23:1202 which fixes the maximum amount payable at this time at the sum of $85.00 per week. These payments are subject to the limitations imposed in R.S. 23:1233.

Accordingly, we amend the judgment in part to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Becky Cunningham, as natural tutrix of the minor children, Tina Marie and Christopher Joseph Cunningham, granting them workmen’s compensation benefits as a result of the death of their father Joseph E. Cunningham, and against defendants, American Mutual Insurance Company and David Campbell Plumbing Company, in the sum of $85.00 per week from June 24, 1976 until the time limitations imposed in R.S. 23:1233; all past due payments to be paid in one lump sum. The remainder of the judgment is affirmed.

AMENDED AND AFFIRMED.

SARTAIN, J., dissents with reasons.

SARTAIN, Judge,

dissenting and assigning reasons.

I must dissent for the reason that the record, in my opinion, is totally devoid of any medical evidence establishing a causal relationship between decedent’s death and his employment. The only medical evidence in the record is the testimony of Dr. Glenn Barnett. To preclude any misunderstanding about his testimony I quote the hypo-thet posed to him and his answer thereto, to wit:

“Q. If you recall, Doctor, I would like to pose a hypothet to you and ask you that you consider my assumptions in light of what you know factually as pertains to the medical history, as well as the manner in which you first saw his condition when you first saw him. Insofar as the hypothet is concerned, I would like for you to assume on May 31, 1976, he was employed as a plumber. He was called upon to change out some parts of a toilet tank by his employer. I want you to assume there was no heavy lifting, bending, or unusual exertion involved.
“He commenced to work at approximately 9:00 a. m. and shortly thereafter he was found in the condition or in a condition similar to what you observed him when you initially saw him. With those facts in mind, I would like to know whether or not you have an opinion as a neurological surgeon and whether or not you could be certain with any degree of medical certainty that this subarachnoid hemorrhage or the condition that led to his demise was in any way caused by his employment situation that I have related. “A. As you related to me, my answer would be it would not have caused the subarachnoid hemorrhage.”

The above is the extent of the medical testimony relative to causation. Assuming, as the majority has done, that the decedent did some work the facts posed in the above hypothet were not varied on cross examination even to conform to the assumption that decedent had carried any tools up stairs or had done anything to the toilet. The testimony quoted above stands alone and totally unrebutted. Further, neither the apartment occupant nor the back up plumber were called as witnesses. Unfortunately, we only know that decedent suffered his fatal aneurysm on the job and basically nothing more.

I am mindful of the rule that a determination of causation by the trial judge is entitled to great weight. However, there really is no conflict in the facts. The case of Francis v. Gerlach Meat Packing Company, Inc., 319 So.2d 534 (La.App. 2nd Cir. 1975) relied on by the trial judge is clearly distinguishable from the facts in the instant matter. In Francis there was medical evidence on the issue of causation, albeit conflicting, whereas in the case before us there is no medical evidence, conflicting or otherwise, establishing a causal relationship between the occurrence of the aneurysm suffered by decedent and his employment.

The issue as to causation in this case is more similar to the same issue in Prim v. City of Shreveport, 281 So.2d 421 (La.1974) and Rowland v. Continental Oil Company, Inc., 374 So.2d 734 (La.App. 3rd Cir. 1979), writ refused, 376 So.2d 1268 (La.1979). In each of these cases only the attending physician testified (as here) and each expressed the opinion (as here) that the disability (stroke and heart attack) was not work related and recovery was denied.

For these reasons I respectfully dissent.


author: STOKER, Judge.

text:
    George KONCINSKY et al., Plaintiffs-Appellants, v. A. V. SMITH et al., Defendants-Appellees.
    No. 7787.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Ledbetter, Percy & Stubbs, J. Michael Percy, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Gravel, Robertson &' Brady, Dan E. Melichar, Stafford, Stewart & Potter, Ronald Fiorenza, Alexandria, for defendants-appellees.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This suit arose out of a contract to install a water system for Choctaw Hills subdivision in Pineville, Louisiana.

George Koncinsky is a realtor, builder and residential developer who through George Koncinsky, Inc., planned the development of Choctaw Hills subdivision in Pineville, Louisiana. In April of 1973, George Koncinsky, Inc., entered into a contract with A. Y. Smith Construction Company, Inc., for the installation of a water system for Choctaw Hills. In the contract the City of Pineville was designated as the owner of the system. The contract provided a one year guarantee of all work done by the contractor. The water line was completed by the contractor and accepted by the City of Pineville in February of 1974. Shortly after the acceptance, the water system developed leaks. These leaks were repaired by A. V. Smith Construction Company, Inc., in accordance with the contract guarantee. The waterline continued to leak and this litigation resulted.

The original plaintiffs in this suit were George Koncinsky, Inc., George Koncinsky, individually and the City of Pineville. Helen Koncinsky, wife of George Koncinsky, was subsequently added as a plaintiff. The original defendants were A. V. Smith Construction Company, Inc., and St. Paul Fire and Marine Insurance Company as the issuer of a performance bond for A. V. Smith Construction Company, Inc. The defendants third partied Jet Stream Corporation, the manufacturer of the pipe used in the system. This third party demand was dismissed with prejudice during the trial. Defendants also reconvened against the plaintiffs in the event of judgment in favor of the City of Pineville. The city settled its claim with A. V. Smith Construction Company, Inc., and was dismissed prior to trial.

George Koncinsky, Inc., and George Kon-cinsky and Helen Koncinsky instituted this suit for damages sustained as a result of the alleged breach of the duty of workmanlike performance by A. V. Smith Construction Company, Inc., in installing the water system. The trial court found that the claim of George Koncinsky, Inc., was a contract claim and that the claims of George and Helen Koncinsky as owners of the land and subdivision were tort claims. Judgment was rendered against plaintiff George Koncinsky, Inc., and in favor of defendants A. V. Smith Construction Company, Inc., and St. Paul Fire and Marine Insurance Company on the contract claim on the basis that the corporation was unable to prove any damages. In the tort claim judgment was granted in favor of plaintiffs George and Helen Koncinsky against A. V. Smith Construction Company, Inc., in the sum of $3,167.10 for lost administrative time and out of pocket expenses. Judgment was rendered against the plaintiffs George and Helen Koncinsky in favor of St. Paul Fire and Marine Insurance Company on the finding that St. Paul Fire and Marine Insurance Company was the surety of A. V. Smith Construction Company, Inc., and not liable in tort for the damages caused by the company. The plaintiffs George Koncinsky, Inc., and George and Helen Koncinsky appealed this judgment. Defendant, A. V. Smith Construction Company, Inc., answered this appeal.

On appeal, plaintiffs-appellants specify as error:

(1) The trial court’s finding that plaintiffs’ damages were non-compensable.

(2) The trial court’s failure to assess expert witness fees as costs.

(3) The trial court’s taxing one-half of the costs to plaintiffs.

In his answer to the appeal, defendant-appellee, A. V. Smith Construction Company, Inc., contends that the trial judge erred in awarding any damages in favor of the individual plaintiffs George and Helen Kon-cinsky. The answer to the appeal is limited by its terms to the question of quantum of the award, i. e., the award of $3,167.10 to George and Helen Koncinsky. In oral argument counsel for defendant-appellee raised the issue of prescription as to these individual tort claims. Counsel requested an opportunity to file supplemental briefs on the subject of prescription and this court granted permission. Both parties filed supplemental briefs on this issue subsequent to oral argument. We have concluded, however, that the issue of prescription is not properly before us.

In the trial court, the defendants filed an exception of prescription of one year leveled at the tort claims of the Kon-cinskys. The trial court overruled the exception and the case went to trial. At oral argument when the issue of prescription of the tort claims was brought up, we did not then advert to the fact the answer to the appeal by A. V. Smith Construction Company, Inc., was limited and was a restricted appeal. Inasmuch as the appellee’s answer to the appeal was limited, the answer did not bring up the issue of prescription. Although we appeared to countenance consideration of the prescription on appeal in allowing the filing of supplemental briefs on the subject, we are bound by the provisions of LSA-C.C.P. art. 2133 and must apply it. We hold therefore that the issue of prescription is not before us in this appeal. See Craig v. Southeastern Fidelity Insurance Co., 377 So.2d 1271 (La.App. 3rd Cir. 1979), writ denied, 381 So.2d 510 (La.1980); Juan v. Harris, 263 So.2d 370 (La.App. 4th Cir. 1972) affirmed and amended on further grounds, 279 So.2d 187 (La.1973); Story v. Martin, 217 So.2d 758 (La.App. 4th Cir. 1969); and Lomenick v. Hartford Accident and Indemnity Co., 189 So.2d 731 (La.App. 3rd Cir. 1966). Cf. Tassin v. Allstate Insurance Company, 310 So.2d 680 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 836 (La. 1975). Juan v. Harris, supra, held that a brief cannot be considered as an answer to an appeal.

LIABILITY

In this case plaintiffs seek damages alleged to have resulted from defective installation of a water system installed in a new subdivision. The record is not clear as to the relationship of George Koncinsky, individually, George Koncinsky, Inc., and the subdivision which is known as Choctaw Hills. The one clear fact is that the corporation entered into the contract with A. V. Smith Construction Company, Inc., for the laying of the water system. See D-4 at transcript pages 13-42 and particularly page 24. An assertion in plaintiffs’ brief suggests that George Koncinsky individually and his wife, Helen Koncinsky, were owners and actually held title to the land from which the subdivision was carved. The statement in the brief reads as follows:

“Due to a clerical error or other misunderstanding on the part of the engineers, George Koncinsky, Inc., was named as the party to the Contract between Smith, Koncinsky and the City of Pineville. Accordingly, it was necessary that Mr. Kon-cinsky institute suit in his corporate name (as obligee under the Contract) and in his and his wife’s personal name (as owners of the subdivision.)”

The probability that the Koncinskys and not the corporation owned the land is strengthened by the testimony of Mr. Kon-cinsky on page 592 of the transcript concerning the manner in which the land was acquired. However, the matter is not clear. Ultimately, however, we consider the question of ownership and the relationship of the parties to Choctaw Hills subdivision not to be decisive of the issues in the case. Assuming that George Koncinsky and Helen Koncinsky were third parties with respect to the contract for the water system improvement, the damages sustained were not the cost of repair of damages to the land or water system as will be explained later in this section. As third parties they sustained damages for which A. Y. Smith Construction Company, Inc., must stand liable. The trial .court found that the corporation, George Koncinsky, Inc., had not proven that it sustained any damage, which holding we affirm, so that the matter ultimately becomes moot as to the corporation.

With respect to the question of liability flowing from the negligent failure to lay the water system in a workmanlike manner, the trial court’s findings of fact are supported in the record and are not clearly wrong. The defective work constituted a breach of the contract with George Koncinsky, Inc. The trial court rested liability for the tort damages sustained by the Koncin-skys individually on Marine Insurance Company v. Strecker, 234 La. 522, 100 So.2d 493 (La.1957) and Day v. National-U. S. Radiator Corporation, 117 So.2d 104 (La.App. 1st Cir. 1959). The principle for which these cases are cited is the principle that a contractor may not escape tort liability to third persons on the ground of lack of contractual relations between the contractor and a third party. In the Strecker case the court indicated avenues of escape for the contractor. The court stated the law as follows:

Although many jurisdictions apparently still accept the legal principle that after the owner has accepted the work, a contractor is not liable for injuries to a third person caused by the contractor’s defective work, the better view seems to be that lack of privity should not be a legal defense in a tort suit against a contractor.
Finally, as we view the matter, there exists no valid reason for excusing a contractor from liability in a tort action on the privity of contract doctrine or because of want of contractual relations between the contractor and the injured party. If the act of the contractor causes damage and he is at fault, he is under an obligation to the injured party to repair the damage under Article 2315 of our Civil Code, and the injured party has a right of action, to enforce the obligation imposed by this article. The contractor, of course, may escape liability under substantive tort law if, for instance, there is no proof of his negligence, no establishment of the fact that the injury or damage was foreseeable or that danger from defective construction would be probable, or no proof that the injury was proximately caused by the contractor’s conduct.

See also Williamson v. Gulf Coast Line Contracting Co., Inc., 301 So.2d 657 (La.App. 3rd Cir. 1974).

In our opinion the facts allow the contractor A. V. Smith Construction Company, Inc., no escape. In this contractor’s defense it is vigorously urged that the damages claimed were not foreseeable consequences of a breach of the contract in the form of defective workmanship. The defects caused leaks which persisted over some time. The leaks caused damage to the subdivision during the time of its development and sales promotion. Whether George Kon-cinsky was actual owner of the land or not, the record discloses that he had a great financial stake in the success of the subdivision. He was the prime, if not the sole, person concerned with carrying out the physical development and promoting the sale of lots in the subdivision. The evidence clearly establishes that George Koncinsky individually experienced much anxiety, frustration and extra work during the period of difficulties. There is no doubt that George Koncinsky individually, sustained damage within the intendment of LSA-C.C. arts. 2315 and 2316.

For the foregoing reasons we sustain the trial court’s finding of liability in favor of George and Helen Koncinsky. As we shall explain later, we find no proof of damages sustained on the part of Helen Koncinsky which were peculiar to her but find no error in the trial court judgment in her favor. The items of damages allowed by the trial court would form a community claim and there is no error in the award being made to the husband and wife jointly.

Plaintiffs-appellants complain that the trial court erred in finding their damages non-compensable.

In the trial court plaintiffs sought damages for:

(1) Lost administrative time in dealing with the problems caused by the leaking water system;

(2) Lost profit because of decreased sales and the additional cost of money and lost capital;

(3) Lost reputation, humiliation, and embarrassment;

(4) Out of pocket expenses for ditch repair and stabilization.

Plaintiffs do not seek to separate the damages incurred by George Koncinsky, Inc., as a result of breach of contract from those sustained by George and Helen Kon-cinsky, individually as a result of tort. They merely argue that the parties are entitled to recover all damages sustained as a result of the water system whether in tort or contract.

The trial court discussed each item of damages first with regards to George Kon-cinsky, Inc., and the breach of contract claim and secondly with regards to George and Helen Koncinsky and the tort claim. The lower court found that George Koncin-sky, Inc., was unable to prove any damages resulting from the breach of contract. As to the tort claim the individual plaintiffs George and Helen Koncinsky were awarded the sums of $1,250.00 for lost administrative time and $1,917.10 for out of pocket expenses for a total of $3,167.10.

Contract Damages of George Koncinsky, Inc.

LSA-C.C. art. 1934 provides that in a breach of contract action the plaintiff is entitled to recover as damages the amount of loss he has sustained and the profit of which he has been deprived. Plaintiff has the burden of proving the damage he suffered as the result of the breach of contract. Campbell v. LeLong Trust, 327 So.2d 533 (La.App. 2nd Cir. 1976), writ denied, 331 So.2d 494 (La.1976).

As to the damages incurred as a result of lost administrative time we agree with the trial judge that this item of damage is personal to George Koncinsky and is not recoverable by George Koncinsky, Inc., in a contract action.

Recovery by the corporation for lost profits was disallowed by the trial court because the sole proof offered to establish this item of damage consisted of the joint income tax returns of George and Helen Koncinsky. We agree that the income tax returns of the individual plaintiffs are not adequate proof of damage to George Kon-cinsky, Inc.

Plaintiffs attempted to prove loss of reputation through the testimony of subdivision residents. The testimony adduced dealt with the standing of George Koncin-sky in the community. The testimony was not directed at the reputation of George Koncinsky, Inc. We agree with the trial court that the corporation was unable to prove damage to its reputation. Moreover, under Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), these damages are not awardable in an action for breach of this type of contract.

Plaintiffs claimed damages for out of pocket expenses. Cancelled checks on the account of George Koncinsky Realtor Builder were offered to prove these expenses. We agree with the trial court that these checks do not prove a loss to George Koncinsky, Inc.

The law is clear that a plaintiff is unable to recover damages in a breach of contract action absent definite proof of damages. Plaintiff George Koncinsky, Inc., is not entitled to recover damages for breach of contract because it was unable to carry the burden of proving the damages sustained as a result of the breach.

Tort Damages of George Koncinsky and Helen Koncinsky.

Under LSA-C.C. art. 2315 a party who has been injured as a result of an offense or quasi-offense is entitled to recover for any damages caused by the fault of the tort feasor. Nelson v. Hawkins, 244 So.2d 656 (La.App. 2nd Cir. 1971). A plaintiff has the burden of proving by the preponderance of the evidence the damages caused by a defendant’s fault. Proof of damages may be either direct or circumstantial. Evidence constitutes a preponderance when, on the whole, it shows the facts sought to be proved are more probably true than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). When it is clear that a plaintiff has sustained some damages as a result of the fault of the defendant his demands will not be rejected merely because he cannot establish exactly the amount of damages suffered. Damages to business and reputation which are not susceptible of appraisal by any standard or measurement are left to the discretion of the trier of fact.

Plaintiffs seek to recover damages for lost administrative time expended in dealing with problems created by the leaky water system. Plaintiff George Koncinsky averaged his taxable income over a four year period and arrived at a value for one hour of his time. Plaintiff multiplied this value by the estimated number of hours spent by him in attending to the problems. The sum claimed for lost administrative time was $1,634.15 (51.34 lost hours X $31.83 per hour). The trial court disapproved of this formula based on plaintiff’s taxable income and “guestimation” but awarded $1,250.00 for lost administrative time. We do not consider this award to be an abuse of the discretion of the trier of fact. LSA-C.C. art. 1934. We will affirm this award.

Plaintiffs maintain they are entitled to recover for lost profits caused by decreased sales and increased costs. Lost profits resulting from an offense or quasi-offense must be proved with reasonable certainty. Damages will not be allowed where the lost profits are purely conjectural. New Orleans Shrimp Co., Inc. v. Duplantis Truck Lines, Inc., 283 So.2d 521 (La.App. 1st Cir. 1973). The sum claimed for lost profits is $27,538.81. Appellants base this figure on Koncinsky’s expectations of selling sixty-five lots over a three-year period (21.6 lots per year) and taxable income figures as reflected by the Koncinskys’ joint income tax returns. Koncinsky argues that he was able to sell twenty-five lots in 1974 but was only able to sell six lots in 1975 and twelve lots in 1976. Plaintiff maintains that he was unable to sell these lots because the defective water system made the lots undesirable to the buying public. The trial court felt that the proof offered was insufficient to substantiate a claim for lost profits. We agree with the lower court that there are many factors which could have contributed to Koncinsky’s inability to sell these lots and feel that the plaintiffs are unable to causally relate decreased sales of lots to defendant’s tortious conduct.

Plaintiffs urge this court to award damages for injury to the reputation of Koncinsky and his subdivision and for humiliation and embarrassment. The trial court found that the testimony of the witnesses at trial did not establish that Koncin-sky suffered a loss of reputation in the community as a result of the problems with the water system. We are of the opinion that the record indicates Koncinsky suffered damages to his reputation. Mrs. Frances Webb, a subdivision resident since November of 1974, testified that she had heard Koncinsky’s reputation discussed and that it was “bad” as a result of the water system problems. Mr. Thomas Yonker, a resident since July of 1974, testified that prior to the time he moved into the subdivision he heard Koncinsky’s reputation discussed and that these discussions led him to believe that Koncinsky “was one of the more reputable, experienced and expert builders in this area.” Tr. 500.

Mr. Yonker was questioned concerning the reputation of the subdivision and the reputation of Mr. Koncinsky as a developer after the occurrence of the water system problems in the subdivision. His replies are not exceptionally forceful or graphic and appear to disclose some hesitation or reservations on his part at least insofar as Mr. Koncinsky personally was concerned. As recorded on pages 503 and 506 of the transcript his testimony was as follows:

“Q Had you ever heard the reputation of the subdivision discussed after the leaks which you just described?
A Yes, sir.
Q All right, sir. And what, at that time, was the reputation of the subdivision as you heard it discussed?
A It was not as good as in the earlier years.
Q Had you, after the leaks which you have described heard the reputation of Mr. Koncinsky as a developer discussed?
A I have difficulty recalling an exact discussion of Mr. Koncinsky’s reputation as a developer.
Q Did you hear his reputation discussed after that time?
A Yes.
******
Q All right, sir. Did you ever hear Mr. Koncinsky’s reputation as a developer or in connection with any of his activities as a developer discussed after the leaks in question?
A Yes.
Q And what-in what connection was his reputation discussed?
A In connection with the water system.
Q At that point in time, was his reputation good or bad?
A Mr. Koncinsky’s reputation was less good than it had been earlier. It would be-I would be overstating it to say that it was bad.” (Emphasis supplied)

The original petition sought damages for loss of reputation and public confidence. By subsequent amendment there was added to this itemization “lost administrative time, embarrassment and humiliation in investigating, explaining and solving problems associated with water leaks in Choctaw Hills”. Paragraph XIII of the petition set forth these allegations:

“The constant leakage and interruption of water service in Choctaw Hills Subdivision has subjected Koncinsky, both corporately and personally, to harassment by its residents and has injured, diminished and damaged the otherwise excellent reputation of the subdivision and its developer.”

The trial court found that proof of loss of reputation or humiliation and embarrassment was lacking. The trial court stated that as a consequence this claim was not justified. We agree that the proof is not strong, but we nevertheless feel that the record discloses that the personal reputation of Mr. Koncinsky was affected to his detriment. We also think the record establishes that Koncinsky experienced humiliation and embarrassment. Tr. 550, 558, 562-564, 598-600 and 606. Therefore, we reverse the trial court insofar as it denies Koncinsky individually any recovery for his loss of reputation, humiliation and embarrassment. A corporation was interposed between George Koncinsky individually and the contractor, A. V. Smith Construction Company, Inc., however, the name of the plaintiff corporation was George Koncinsky, Inc., and George Koncinsky individually was personally identified with the corporation which undoubtedly operated to cause the public to make no distinction between the two. Moreover, it should be noted that Koncinsky individually was the person who personally received and dealt with complaints.

While we have little evidence as to the degree of feelings experienced by Koncin-sky in this regard, we will allow him the sum of $2,000 to compensate him for these losses.

Plaintiffs also claimed $1,917.10 as out of pocket expenses occasioned in repairing the ditches and for other stabilization work. These expenses are recoverable as costs of restoration and the trial court found they were adequately proved by invoices and cancelled checks drawn on the account of George Koncinsky Realtor Builder. As we find no manifest error in this holding, we will affirm this award.

EXPERT WITNESS FEES

Plaintiffs-appellants complain that the trial court failed to fix and award expert witness fees for three expert witnesses. Such expert witness fees are fixed by the court “with reference to the value of time employed and the degree of learning or skill required.” LSA-R.S. 13:3666. Since there is no evidence in the record as to the amount of time spent by these witnesses or the value of their time, we think the trial court is in a better position to fix these fees. Plaintiffs-appellants should proceed by rule in that court to tax these fees as costs.

COSTS

The appellants and appellees in this case both suggest that the other party should bear all costs of this litigation. The trial court assessed one-half of the costs to each party.

LSA-C.C.P. art. 2164 gives this court authority to “... tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.” LSA-C.C.P. art. 1920 gives the trial court the authority to tax costs in that court in a manner it considers equitable. Our jurisprudence has interpreted Article 1920 to vest much discretion in the trial court in assessing costs. A change in the trial court’s imposition of costs can be made by the appellate court only when the trial court has abused its sound discretion. We find no abuse of discretion by the trial court in assessing one-half of the costs to each party.

CONCLUSION

The trial court awarded the sum of $3,167.10 covering loss of administrative time and out of pocket expenses to “plaintiffs George Koncinsky, individually, and Helen Koncinsky.” We see no error in including Mrs. Koncinsky in the award although she proved no loss or damage which was peculiar to her. As these were community claims, Mrs. Koncinsky had as much interest in recovery as her husband. Inasmuch as the award of damages for loss of reputation, humiliation and embarrassment were peculiar to Koncinsky we will make the award to him.

For the foregoing reasons we affirm the judgment of the trial court except insofar as it denies recovery to George Koncinsky for loss of reputation, humiliation and embarrassment, and as to that denial the judgment of the trial court is reversed.

It is now therefore ordered, adjudged and decreed that in addition to the recovery allowed in the trial court’s judgment that there be judgment herein in favor of George Koncinsky, individually, and against defendant A. V. Smith Construction Company, Inc., in the full sum of $2,000.00, together with legal interest therein from date of judicial demand until paid.

Costs of this appeal are cast one-half to plaintiffs-appellants and one-half to defendant-appellee.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . This disposition may be academic in view of former Article 2334 of the Louisiana Civil Code under which a husband’s action for damages resulting from offenses and quasi-offenses were designated as community property. This article has been replaced by new Article 2344 of the Louisiana Civil Code which provides otherwise. Section 1 of Act No. 709 of 1979 of the Louisiana Legislature.


author: GUIDRY, Judge.

text:
    Juanita LANDRY, Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellee.
    No. 7894.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Scofield, Bergstedt & Gerard, Benjamin W. Mount, Lake Charles, for plaintiff-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, James E. Williams, Lake Charles, for defendant-appellee.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This suit was instituted by the plaintiff, Juanita Landry, against Travelers Insurance Company (hereafter, Travelers) and other defendants for damages resulting from injuries sustained in an automobile accident occurring on October 25,1973. All defendants with the exception of Travelers have been dismissed. Travelers filed a Motion for Summary Judgment which was sustained by the trial court resulting in the dismissal of plaintiff’s suit as to it. Plaintiff appeals that judgment.

The pleadings, insurance policy, and attached affidavits reveal the following facts: The plaintiff, Juanita Landry, is a court reporter for the Fourteenth Judicial District, Parish of Calcasieu, State of Louisiana. On October 25,1973, the plaintiff was a passenger in a 1967 model Pontiac station wagon owned by Don Siebarth Pontiac, Inc., of Lake Charles, Louisiana, and operated by Fourteenth Judicial District Judge Henry L. Yelverton. While returning from a session of the district court being conducted in Cameron, Louisiana, the automobile in which both parties were riding was struck head-on by an oncoming vehicle driven by Ms. Elsie Vaughn, an uninsured motorist. As a result of the collision the plaintiff received extensive injuries. At the time of the accident, Travelers had in full force and effect a comprehensive automobile and general liability policy designating the Police Jury of Calcasieu Parish as the named insured. The plaintiff filed suit seeking recovery under the uninsured motorists coverage of that policy.

The defendant, Travelers, filed a motion for summary judgment based upon the following grounds: (1) the comprehensive automobile and general liability policy issued to the Calcasieu Police Jury did not provide uninsured motorists coverage as such coverage had been expressly rejected by Parish officials vested with the authority to decide such matters; and, in the alternative, (2) if uninsured motorists coverage is determined to be in full force and effect, it is asserted that the plaintiff is not an “Insured” under the provisions applicable to uninsured motorists policies issued by the defendant company. Travelers contends that the provisions regulating uninsured motorists coverage as provided by their company apply to the policy at issue despite the fact that such provisions were neither attached to nor made a part of the comprehensive automobile and general liability policy issued to the Calcasieu Parish Police Jury.

The trial judge sustained the defendant’s Motion for Summary Judgment without providing written reasons for his decision. Thus, this court does not know what prompted the lower court to grant the defendant’s motion. Specifically, we do not know if the trial court determined that (1) the policy issued to the Calcasieu Parish Police Jury did not provide uninsured motorists coverage, and/or (2) that although the policy did provide uninsured motorists coverage, this particular plaintiff was not an “Insured” under the provisions of the policy in effect at the time of the accident. The defendant attached to his Motion for Summary Judgment a copy of those provisions which ordinarily regulate uninsured motorists coverage when provided by the defendant company. It is admitted by the defendant that these provisions were not attached to the comprehensive automobile and general liability policy in question. Therefore, a sub-issue arises which may be styled in the following manner: if this court were to decide that uninsured motorists coverage is applicable to the policy at issue, then can those limiting provisions ordinarily applicable to such coverage be considered in determining whether or not the plaintiff is an “Insured” under the uninsured motorists coverage even though such provisions were neither attached to nor incorporated into the general liability policy?

As previously stated, the first issue for resolution is whether or not the insurance policy issued to the Calcasieu Parish Police Jury provided uninsured motorists coverage. The récord reflects that the Travelers Insurance Company has provided the Police Jury of Calcasieu Parish with comprehensive automobile and general liability insurance since 1966. Evidence attached to the defendant’s motion for Summary Judgment indicates that in years prior to the year of the accident the parish governing authority rejected, in writing, the inclusion of uninsured motorists coverage when contracting for their general liability policy. The record contains copies of written rejection slips for the years, 1966-1968, 1970, and 1975. However, there is no written rejection slip for the period with which we are concerned, that is, 1973-1974.

As previously stated, the accident which is the subject of this litigation, occurred on October 25, 1973. The policy in effect at the time of the accident was dated August 10, 1973. Therefore, the applicable version of our present statute LSA-R.S. 22:1406(D)(1) in relevant'part is contained in Act 137 of 1972 which provides:

“No automobile iiability insurance covering liabiiity arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

The statute, although conferring the right to reject uninsured motorists coverage, is silent as to the mode to be used when rejecting such coverage. In 1975 the Legislature passed Act 494 which specifically provided that all rejections must be in writing to be valid. In addition, Act 494 provided that one need not obtain a new written rejection each time a policy was renewed or substituted if the named insured had previously rejected coverage in writing. Regardless of the later modifications of this statute, this court must consider the version of the statute in effect at the time this case arose.

Two of our state appellate courts have addressed the precise issue now before this court. In Walker v. Coleman, 367 So.2d 395 (La.App. 2nd Cir. 1979), writ denied as untimely, 369 So.2d 1365, the question arose as to whether or not the city of Shreveport had validly rejected uninsured motorist coverage, thereby precluding the plaintiff’s recovery. Evidence was introduced by the defendant to show that the city, acting through its officials, orally rejected uninsured motorists coverage. The court, in holding that an oral waiver of uninsured motorists coverage was ineffective stated:

“... It is a fundamental rule of insurance law that coverage is to be determined by the provisions of the contract and applicable statutes, and that there can be no oral variance of the coverage provided by contract and statute. We, therefore, hold that proof of a waiver of such statutorily mandated coverage must be in writing to be effective.”

Subsequently, the Fourth Circuit addressed the identical issue in the case of LeBoyd v. Louisiana Transit Company, 375 So.2d 749 (La.App. 4th Cir. 1979), concluding that an oral rejection of uninsured motorists coverage was insufficient to preclude such coverage under the version of LSA-R.S. 22:1406 in effect as of the date of the renewal policy. The court in examining the Language of LSA-R.S. 22:1406(D)(1) stated:

“... we note that it mandates inclusion of uninsured motorist coverage in any auto liability insurance issued for delivery in Louisiana. The coverage is required, but is inapplicable if rejected by the insured. Thus, the fact that the policy in this case contained no language regarding uninsured motorist coverage is of no moment; the compulsory requirements of the statute mean that uninsured motorist coverage must be read into the policy. Since the policy thus mandatorily provides uninsured motorist coverage, rejection of such coverage should have been in writing, because rejection conflicted with the coverage.”

The LeBoyd court also addressed the issue regarding whether or not a written rejection is valid as to subsequent renewals or substitutions of the same policy. The court in deciding that prior rejections were not effective commented:

“... The 1974-1975 policy renewal (the policy at issue) constituted a new and separate contract and, in the absence of any statutory remission of the usual law, was subject to the entire contract policy. Accordingly, it would have required a new written rejection in 1974 to erase the mandatory uninsured motorist coverage read into the policy by law.”

This court finds the reasoning of our brethren in the cited cases persuasive for the reasons stated therein. We therefore conclude that under the version of LSA-R.S. 22:1406(D)(1) in effect in 1973, an express written rejection of uninsured motorists coverage was required in order for such a rejection to be effective. To the extent that the trial court may have concluded that the policy issued by the defendant, Travelers Insurance Company, did not provide uninsured motorists coverage, we find that conclusion to be in error.

The defendant in its motion for summary judgment asserts that even if it is determined that the policy issued to the Calcasieu Parish Police Jury included uninsured motorists coverage, the usual uninsured motorists policy provisions applicable to general liability policies issued by Travelers preclude recovery by the plaintiff in that the plaintiff is not an “Insured” as defined in the aforementioned provisions. The defendant’s argument is primarily based upon the applicability of those uninsured motorists provisions ordinarily attached to general liability policies issued by Travelers. As previously noted these provisions were not attached to the general liability policy which is the source of this litigation. Defendant has submitted in conjunction with its motion for summary judgment a copy of those provisions ordinarily applicable to uninsured motorists coverage when provided by the defendant company. This court has reviewed these provisions and notes that they function to limit certain provisions of the general liability policy. We take particular cognizance of the fact that the term “Insured” is more restrictively defined in the uninsured motorists provisions than in the general liability policy. It is axiomatic that since these provisions are limiting in their effect, they may not be considered unless originally attached to or made a part of the general liability policy. LSA-R.S. 22:628 very clearly states:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless in writing and made a part of the policy. .. ”

We, therefore, conclude that the provisions regulating and limiting uninsured motorists coverage ordinarily employed by Travelers are not applicable to the policy issued to the Calcasieu Parish Police Jury as they were neither attached to nor made part of the general liability policy.

After reviewing the trial record, counsels’ briefs, and the affidavits submitted in connection with the defendant’s motion for summary judgment, we determine that there exists a genuine issue of material fact which precludes rendition of summary judgment dismissing plaintiff’s suit. Specifically, the defendant has not provided the court with a sufficient factual showing to sustain its allegation that the plaintiff is not an “Insured” under the language of the general liability policy issued to the Calcasieu Parish Police Jury.

For the above and foregoing reasons the judgment of the trial court sustaining defendant’s motion for summary judgment is reversed and set aside and this matter is remanded to the trial court for further proceedings consistent with the views herein-above expressed.

REVERSED AND REMANDED.

      . The LeBoyd court examined LSA-R.S. 22:1406(D)(1) as it existed after amended by Act 154 of 1974. Act 154 modified Act 137 of 1972 by providing that the insured could not only reject uninsured motorists coverage but also select lower limits. Not until the passage of Act 494 of 1975 did LSA-R.S. 22:1406(D)(1) specify the manner in which the insured must reject uninsured motorists coverage for such rejection to be effective.

      . We do not consider this court’s decision in Myers v. Thibeaux, 365 So.2d 266 (La. App. 3rd Cir. 1978), as contradicting the findings of the LeBoyd court. Our court in that case was concerned with the effects of prior written rejections on a renewal insurance policy issued subsequent to the passage of Act 494 of 1975.

      . LSA-R.S. 22:628 appears as written in 1973. This particular statute has undergone several revisions, however remains in pertinent part, as quoted herein.


author: GARRISON, Judge.

text:
    Ruby Mae Burgett, Wife of Benny Ray BURGETT v. Benny Ray BURGETT.
    No. 11483.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    William L. Dehner, Westwego, for defendant and appellant.
    Craig J. Cimo, Gretna, for plaintiff and appellee.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dated February 6, 1980, granting to the plaintiff-wife alimony pen-dente lite in the amount of $125.00 per week. From that judgment, which we affirm, the defendant-husband appealed.

The law controlling the instant appeal is Civil Code Art. 148, as amended by Act No. 72 § 1, Acts of 1979, effective June 29,1979, which provides that either the husband or the wife may claim alimony pendente lite:

“If the spouse has not sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

The plaintiff introduced evidence of monthly expenses in the amount of $1,000.00 and present gross earnings of $200.00 monthly (or $2,400.00 annually). The defendant introduced evidence of monthly expenses in the amount of $736.00 and 1979 gross earnings of $23,727.00 annually.

The trial court admitted defendant’s 1979 earnings, which included overtime. The defendant argues that the trial court erred in admitting his 1979 earnings instead of projecting his 1980 earnings on the basis of his wages for the month of January. We disagree. The trial court found that defendant’s overtime work was of a seasonal nature. In the absence of proof to the contrary, his 1979 earnings, as evidenced by his income tax return, were better evidence as to his 1980 earnings. The trial judge found that there was no evidence showing that the defendant’s earnings would be less in 1980. In fact, the court noted that the defendant was given a raise from $7.76 per hour to $8.16 per hour on a 40 hour week, which raise was effective January 1, 1980.

In contrast to the defendant’s situation, the plaintiff showed that her present earnings were $25.00 gross less per week than her 1979 earnings and that her diminution in income was due to the loss of one day’s work per week.

Finally, the trial judge doubted the credibility of the defendant’s testimony. The trial judge did not believe that the defendant’s allegedly lower earnings, if indeed any diminution in earnings had occurred, were due to circumstances beyond the control of the defendant, but rather that the defendant was attempting to decrease his income in order to avoid paying higher alimony.

We note that the trial judge is given considerable discretion in assessing the credibility of a witness. In the instant appeal, we cannot conclude that the trial judge was manifestly erroneous in his factual determinations based on the credibility of the witnesses. Arceneaux v. Domingue, La., 365 So.2d 1330 (1978).

Turning to the appellant’s second contention that the trial judge erred in arbitrarily fixing one-third of the defendant’s income, we do not agree. The trial judge mentioned one-third while considering the income taxes to be paid and the amount that would be available to each party in proportion to their respective expenses. It is also apparent to this court that the reference to one-third arose after the trial judge had made a determination of how much alimony would be awarded and that the statement was used as a means of explanation to plaintiff and defendant.

Upon review of the evidence presented we conclude that the trial judge did not abuse his discretion in awarding $125.00 per week as alimony. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: LETTS, Chief Judge.

text:
    MAZDA MOTORS OF AMERICA, INC., Semperit Aktiengesellschaft, Becky-Arnley Corporation, and Dinsmore Tire Center, Inc., Petitioners, v. Lawrence RYAN, Respondent.
    No. 80-1171.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    Rehearing Denied Jan. 6, 1981.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for petitioner, Mazda.
    Alan Rosenthal of Milledge & Hermelee, Miami, for petitioner, Semperit.
    Thomas E. Kingcade of Levy, Plisco, Shapiro, Kneen, Kingcade & McCarthy, P. A., Palm Beach, for petitioner, Beck-Arnley.
    Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for petitioner, Dinsmore.
    Thomas F. Ryan of Ryan & Ryan, North Palm Beach, for respondent.
   LETTS, Chief Judge.

Under the authority of Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979) we see no alternative but to deny the petition which denial is not a ruling on the merits. In truth we entertain considerable doubt as to whether the ruling of the trial court was correct.

To the frustrated petitioners, this “doubt” is of little solace, but we must reiterate that it is logistically and physically impossible for us to review every order of the trial courts in our jurisdiction. Florida’s appellate courts are already swamped with the highest case loads in the nation. For this very reason, Rule 9.130 was designed to narrow and stem the tide of the number of orders that may be appealed. This being so, we cannot now open the flood gates in the opposite direction.

CERTIORARI DENIED.

MOORE and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    MOSAR DEVELOPERS, INC., a Florida corporation and Carlos Galavis, Appellants, v. Seymour LITMAN, Appellee.
    No. 79-2336.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 7, 1981.
    Dan G. Wheeler, Jr. and George L. Com-baluzier, Miami, for appellants.
    Steven R. Berger, of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appel-lee.
   PER CURIAM.

From two judgments entered pursuant to motions for directed verdict this appeal was taken. The court having reviewed the record and considered the briefs, the appellants having failed to demonstrate error, the trial court is affirmed.

ANSTEAD and HURLEY, JJ., and WARREN, LAMAR; Associate Judge, concur.