text:
    James Harlan POWELL v. DEPARTMENT OF HIGHWAYS, State of Lousiana, and Joseph J. Janusa.
    No. 10926.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.

      William W. Irwin, Jr., Baton Rouge, and Jesse S. Guillot, New Orleans, for defendant-appellant Dept, of Highways.
    Roger M. Denton, Metairie, for plaintiff-appellee.
    SAMUEL, SCHOTT and HOOD (Assigned), JJ.

       Due to the death of Judge Hood prior to rendition, but after his concurrence therein, except with respect to affirmation on the amount of attorney fees, this opinion is rendered unanimously by Samuel and Schott, JJ.

   SCHOTT, Judge.

James Harlan Powell brought this suit against the Louisiana Department of Highways (now the Department of Transportation and Development) and Joseph J. Janu-sa on a “petition to institute boundary action and for damages.” He alleged: He had been the owner of Lots 6 and 7 of Square 204 in Kenner Project Subdivision, Jefferson Parish, since August, 1954, and on November 2, 1959, he sold to the Department a portion of Lot 7 for its incorporation into Interstate Highway 10 between New Orleans and Baton Rouge. By survey dated March 23, 1976, he discovered that the Department had “encroached upon” his property consisting of the remainder of Lot 7 as well as a part of Lot 6 by the construction of a fence and placing monuments for the right-of-way line for the highway. Joseph Janusa, the owner of Lot 5, was made a defendant as a necessary party to the determination of a boundary. He further alleged:

“To the extent that defendants, State of Louisiana and Department of Highways, have encroached upon petitioner’s property, petitioner is entitled to recover damages for trespass, and to injunctive relief ordering the removal of the fence placed upon his property.”

He prayed for the appointment of a surveyor, “fixing the boundary lines of the respective properties;” and “judgment . against . . . Department of Highways in such sum as the Court shall deem equitable and just to compensate petitioner for damages sustained . . . ” The Department filed an exception in which it contested plaintiff’s right to any relief beyond a claim for the value of the property encroached upon, and contended that a boundary action was not available to plaintiff under the circumstances. The trial court overruled the Department’s exception. The Department filed an exception of prescription which was apparently referred to the merits and the matter proceeded to a trial with a resulting judgment in favor of plaintiff for $3600 as the value of the land taken, $2880 for rental of the property for approximately eight years in which the State had the use of the land prior to the date of the judgment, and $3720 attorney’s fees in accordance with LSA R.S. 13:5111. By implication the trial court overruled the Department’s exception of prescription. The trial court dismissed the suit against Joseph J. Janusa. From this judgment the Department has appealed but plaintiff has neither appealed nor answered the Department’s appeal.

In this court the Department specifies errors in the trial court’s decision in, 1) refusing to dismiss plaintiff’s boundary action on its exception of no cause of action; 2)fixing the value of the land taken at $3600 and awarding eight years of rental; 3) failing to dismiss plaintiff’s petition on the exception of prescription; and 4) awarding attorney’s fees to plaintiff.

In an act of sale of November, 1959, plaintiff sold and the Department acquired 11.4 feet of Lot 7 fronting on Waldron Street by 120 feet, between equal and parallel lines, for a total of 1368 square feet. The survey by Palmer and Baker Engineers, Inc. dated November 8, 1957, showing the property taken and the entire project in the vicinity thereof, shows the south right-of-way boundary as taking only 11.4 feet of plaintiff’s property and leaving plaintiff with the balance of his property,consisting of the remainder of Lot 7 (originally 20 feet front) and all of Lot 6 measuring 20 feet by 120 feet. However, on March 23, 1976, plaintiff had his property surveyed by J. J. Krebs & Sons, Inc. and discovered that the highway had actually taken by fencing in all of Lot 7 and all but 5.58 feet of Lot 6, whereupon he instituted these proceedings on May 21, 1976.

The Department’s exception of no cause of action was properly overruled. Although plaintiff was not entitled to a boundary action and although his petition speaks of damages for trespass his case is essentially a claim for the value of his land actually taken by the Department. Thus, his cause of action is the same as that asserted in such cases as Chenevert v. Louisiana State Dept. of Highways, 345 So.2d 960 (La.App. 4th Cir. 1977), Reddel v. State, through Dept. of Highways, 340 So.2d 1010 (La.App. 4th Cir. 1976), and Cruell v. Jefferson Parish, 216 So.2d 604 (La.App. 4th Cir. 1968). Construing plaintiff’s petition as such is consistent with C.C.P. Art. 865’s rule that every pleading shall be construed as to do substantial justice.

Turning to the exception of prescription, the Department urges that plaintiff’s action was prescribed by the prescription of two years provided for in R.S. 9:5624 and R.S. 19:2.1(B); by three years as provided by R.S. 13:5111; or 10 years as provided by C.C. Art. 3544.

R.S. 19:2.1(B) is inapplicable since it applies to the claims for the value of property or damages as a result of expropriation which did not occur in this case. R.S. 9:5624 is likewise inapplicable because it applies to claims for private property damaged for public purposes. The essence of plaintiff’s claim is not for damages but for the value of his land actually taken.

The applicable prescriptive period is provided by R.S. 13:5111:

“A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.”

The Department contends that the property was taken when it was fenced in 1971, so that the filing of this suit in 1976 was too late under a literal interpretation of the statute. However, we have made a reasonable interpretation considering the facts and circumstances of the case and concluded that prescription did not begin to run until March, 1976.

The act of sale by which the Department acquired plaintiff’s property in 1959 was prepared by it and the description was based on its own survey. It represented to plaintiff that it was taking only eleven feet of his property. Since the property was not occupied by plaintiff, he was entitled to rely on the description in the act of sale. It would be unreasonable to charge plaintiff with the duty of discovering that the Department, twelve years later, would place the fence, not on the line which it designate ed as the proper location in its own acquisition, but instead some 25 feet farther within plaintiff’s land. There is no evidence to show that any of the property adjacent to or in the vicinity of plaintiff’s land was occupied or developed so that plaintiff had no reasonable point from which to measure or discover that the Department placed the fence in the wrong location. On these facts alone we would be inclined to hold that prescription did not begin to run until plaintiff’s discovery from the survey in March, 1976, but this conclusion is supported by the jurisprudence.

First, in Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970) the court said the following with respect to C.C. Art. 3536’s liberative prescription of one year:

“. . . Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

Suffice it to say that nothing happened to call plaintiff’s attention to the Department’s change in the location of thq right-of-way.

Second, in Chenevert v. Louisiana State Department of Highways, 345 So.2d 960 (La.App. 4th Cir. 1977) this court was not presented with the precise question of the three year prescription under R.S. 13:5111, but, in considering whether the ten year prescription of C.C. Art. 3544 applied to an action identical to plaintiffs held that prescription begins to run on the date plaintiff has knowledge of the taking. The same result should follow here.

Third, we realize that the language of C.C. Art. 3544 is quite general:

“In general all personal actions . are prescribed by ten years.”

Whereas R.S. 13:5111 is quite specific with the three years running “from the date of such taking.” But we cannot ascribe to the legislature such a harsh intent which would deprive plaintiff under the circumstances present here from obtaining compensation for his land. When the statute was re-enacted in its present form by Act 434 of 1975, Subsection B was added to the statute as originally enacted by Act 121 of 1972. This new subsection provides:

“The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisiana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12, 1975.”

We interpret this to mean that plaintiff has the same rights as Chenevert had under the ten year prescription of Art. 3544 as interpreted by this court.

Finally, the Cartwright case contains a discussion of the doctrine of contra non valentem agere nulla currit praescriptio which is pertinent. The court observed that this doctrine applies where the debtor “has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt.” The act of the Department in purchasing only eleven feet from plaintiff led him to conclude that this was the limit of its right-of-way in this undeveloped vacant area and created an equitable bar against the Department raising a three year prescriptive defense when it built beyond the eleven feet some eleven years later.

As to the value of the property, plaintiff on April 27, 1978, served the Department with a request for admissions of fact including the following:

“The fair market value of plaintiff’s owned Lots 6 [sic], and portion of Lot 7 [sic], was at all times pertinent not less than the sum of $3600.00.”

On May 1, 1979, the Department served the following answer on plaintiff:

“Fair market value of plaintiff’s property allegedly encroached upon is not in excess of $1.00 per square foot at the time of the alleged appropriation.”

Plaintiff then moved to contest the sufficiency of the Department’s answer to the request invoking the following provisions of LSA C.C.P. Art. 1467:

“The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.”

In due course the court rendered judgment on plaintiffs rule ordering that the request be “deemed admitted.”

Plaintiff offered no evidence to establish the value of the property but depended entirely on the action of the court regarding the request for admissions. In his reasons for judgment, now before us, the trial judge stated that the $3600 value was admitted by defendant. In this court the Department contends that plaintiff failed to carry his burden to prove the value of the land taken and insists that the action taken on the request for admissions standing alone is insufficient.

The procedure available to parties to serve requests for admissions, C.C.P. Arts. 1466-1468, is designed to relieve parties of the expense of proving that which is not seriously disputed and to relieve the courts from taking needless time to hear such matters. The language of Art. 1467 confers discretion on the trial court in the implementation of the procedure and such a decision should not be disturbed in the absence of an abuse of that discretion. The Department has not demonstrated such an abuse and we find none.

The request for admissions was simple— admit that the value of the property taken was at all times at least $3600. The answer equivocated. Framed in terms of not more than one dollar per square foot it means little considering the wide variation between what plaintiff contended was taken and what the Department admitted taking. Furthermore, the one dollar figure was said to apply to the “time of the alleged appropriation” which might mean as of 1959 when the highway was staked out according to Mr. Wheat or any other date between then and 1976, when plaintiff filed suit. The court was clearly justified in holding that the answer did not comply with the rule of Art. 1467.

Furthermore, to agree with the Department on this point would frustrate the purposes of the procedure on admissions. Once the court exercised sound discretion in holding that the request was admitted by the Department the plaintiff and the court could indulge in the belief that further evidence on the subject was unnecessary. The issue was closed and the value established before trial.

On value, the Department has raised one other issue which should be addressed. It offered proof that all of the lots on the south side of the Interstate Highway, including plaintiff’s, were short some frontage as a result of a surveying error made long ago when the subdivision was plotted. This error consisted of calling for more lots on the plan than available land on the ground would permit. We dismissed this argument in Chenevert v. Louisiana State Dept. of Highways, supra, and do so again here. There may be a problem as between plaintiff and all the other owners in the Subdivision but there is no problem as between plaintiff and the Department. Whether his original lots were together forty feet wide or a foot or two less the Department took his land and no one else’s. The Department therefore owes him the value.

The next issue raised by the Department concerns the award to plaintiff of “rental” for the property by the Department for the eight years between the taking in 1971 and the date of judgment in 1979. The trial judge used a ten per cent of $3600 value for eight years to arrive at $2880. We find no basis in law or the jurisprudence for this approach. In Reddel v. State, through Dept. of Highways, supra, we held that the value of the property was determined as of the date when plaintiff acquired knowledge of the taking but plaintiff was entitled to interest from the date of the actual taking. This is reasonable since the Department had a right to take the property and should have compensated plaintiff at that time. Plaintiff was entitled only to his money and the penalty for non-payment of money is interest. The judgment will be amended to delete the “rental” of $2880 and award plaintiff legal interest from March 4,1971, when the fence posts were installed.

Finally, the Department questions plaintiff’s entitlement to attorney’s fees of $3720, but R.S. 13:5111 clearly provides for such an award. It provides that the “court . shall determine and award to the plaintiff . . . such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding.” Plaintiff’s attorney testified from detailed time records that he had spent 62.3 hours and his hourly rate as agreed to by plaintiff was $40 at the beginning and was raised to $60 as the case progressed. The award was supported by this testimony and was well within the discretion of the trial judge. However, the trial court’s award of legal interest on the attorney’s fee is not supported by the statute which provides that such an award will be “as a part of the costs of court.”

Accordingly, the judgment appealed from is amended and recast as follows:

IT IS. ORDERED, ADJUDGED AND DECREED that there be judgment in favor of James Harlan Powell and against the Department of Highways, State of Louisiana, in the full and true sum of Three Thousand Six Hundred and No/100 ($3600.00) Dollars, with legal interest from March 4, 1971, until paid, and all costs of these proceedings, including $3720.00 for attorney’s fees.

AMENDED AND RECAST.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    LEONARD B. HEBERT, JR. & CO., INC. v. LOUISIANA DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY and Janet K. Pagart.
    No. 10942.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Hammett, Leake, Hammett, Hulse & Nelson, John A. Stewart, Jr., New Orleans, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment affirming the holding of the Board of Review of the Office of Employment Security, granting unemployment compensation to Janet Pagart as a result of her termination of employment with Leonard B. Hebert, Jr. & Co., Inc. We incorporate the findings of the Board of Review as our own.

“The claimant worked for the above-mentioned employer for approximately one year and ten months as an Estimator’s Assistant. She normally worked from 8:00 A.M. to 5:00 P.M., Monday through Friday. At the time of her separation she was earning. $185.00 per week.
“The claimant was absent from work, May 29, 1978 until June 5, 1978, for personal illness. On June 5, 1978, the claimant attended a meeting with Mr. Leonard B. Hebert and Mr. Jim W. Smith, President and Vice-President respectively. In this meeting the claimant requested a leave of absence because of medical problems and other personal problems which she was now experiencing. During the course of the meeting, Mr. Hebert told the claimant that she could work part-time and as many hours that she felt she could work on any given day. In addition, she was told she could take as much time as she needed to get. her problems, medical and personal, straight. The claimant expressed to Mr. Hebert she would try to report the following Monday; however she was unable to do so. During the month of July, 1978, the claimant contacted her employer and spoke to Mr. Hebert, and at this time she was informed by him that they had hired a replacement for her job.”
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“After carefully reviewing all of the testimony and evidence in this case, it is clear to the Board that the claimant’s unemployment was brought about because she was experiencing personal illness and personal problems. The Board further finds that the claimant did contact her employer in regard to a leave of absence and was then assured that she could arrange her work hours in any fashion that she desired in order to get her problems corrected.
“Due to the aforementioned, this Board must conclude that the claimant did not quit her job but was replaced while on approved leave of absence and at the convenience of her employer.”

Plaintiff-appellant argues that the grant of unemployment compensation should be reversed on the basis of Goff v. Administrator of Division of Employment Security, 157 So.2d 268 (App.3rd, 1963) and Prenell v. Brown, 130 So.2d 520 (App.3rd, 1961). We do not agree.

In Goff, the claimant asked for a morning off in order to find someone to care for his sick wife; he did not return to work until a week later. During this period of time, the claimant neither notified his employer nor made efforts to find someone to care for his wife. Additionally, the claimant had a long history of excessive absenteeism. In Goff, the claimant was released because of excessive absenteeism, hence he was disqualified for unemployment compensation benefits. He was not on an approved leave of absence granted by his employer.

In Prenell, the claimant’s hand began to develop a rash on Friday. The foreman was notified of this fact on the same day. The claimant, who was scheduled to work on Saturday, neither reportedofor work nor notified his employer on Saturday. On Monday, claimant reported for work only to be told that he was discharged. In Prenell, the court found that claimant’s failure to specifically inform his employer of the fact that he did not intend to work on Saturday did not constitute “misconduct” sufficient to deprive claimant of unemployment compensation.

Both Prenell and Goff cite the case of Lacombe v. Sharp, 99 So.2d 387 (App.2nd, 1957), which we find controlling.

In Lacombe, the claimant was granted a leave of absence without a specific return day. She was absent from her employment pursuant to the leave for a period of approximately 18 days, during which she did not contact her employer to set a return date. When she reported for work, she was notified that she was discharged. The court stated that the claimant’s reason for absence was “real and compelling, even though of a purely personal nature, (at 390)” finding that family obligations furnish real and compelling reasons for temporarily leaving employment. The court further found that:

“Perhaps the most that can be said as to the fault, if any, of claimant, is that her failure to notify her employers at a time of emotional stress was an act of thoughtlessness. We cannot classify such an act as misconduct within the meaning of the statute . . . ” At 390.

The court granted, unemployment benefits to the claimant.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

      . LSA-R.S. 23:1634 expressly provides that in the absence of an issue of fraud the judicial review of the findings of the Board of Review is limited to a determination of whether the findings of fact are supported by the evidence.


text:
    SCHWEGMANN BROTHERS GIANT SUPER MARKETS et al. v. James J. DONELON et al.
    No. 11017.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Writ Refused June 6, 1980.
    James S. Arceneaux, Parish Atty., Parish of Jefferson, Gretna, for defendants-appellants.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Michael R. Fontham, Stephen G. Bullock, New Orleans, for plaintiffs-ap-pellees.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment granting a writ of mandamus ordering the Safety Director and Director of the Department of Inspection and Code Enforcement of Jefferson Parish and the Director of the Department of Planning of Jefferson Parish to issue a building permit to Schwegmann Giant 'Supermarket and Schwegmann Westside Expressway, Inc. (hereinafter Schwegmann) for the construction of a supermarket at the site Lots 1-A, 1-B, and 1-E of Tract F, Bissonet Plaza Subdivision (hereafter Bissonet), Jefferson Parish, pursuant to the plans and specifications certified as approved as of January 3, 1979.

Schwegmann brought this action against all members of the Jefferson Parish Council, the. Safety Director and Director of the Department of Inspection and Code Enforcement of Jefferson Parish, the Chief Building Inspector of Jefferson Parish, and the Acting Director of the Department of Planning of Jefferson Parish. All defendants appeal the judgment which we now affirm.

Schwegmann had purchased the Bissonet tract for the purpose of’ erecting a supermarket. At the time of purchase, 5.5 acres were zoned C-2 and two acres were zoned R-l under the Comprehensive Zoning Ordinance. C-2 was the broadest classification for commercial activity under the Zoning Ordinance. The remaining two acres zoned R-l were available for use as parking in conjunction with the C-2 area.

In 1967, Schwegmann announced that a supermarket would be built on the Bissonet tract. When public opposition arose to the plan, the tract was rezoned to a C-l level as a compromise. The C-l zoning classification, while more restrictive that a C-2 level, would not prevent the construction of the proposed supermarket.

On September 20, 1978, the Parish Council passed Resolution No. 34310 requesting that the .Planning Department make a zoning study of the Schwegmann property. Pursuant to the institution of the study, the Planning Department informed the Safety Department that no building permit would be issued to Schwegmann.

On October 24,1978, a public hearing was held at which time the Planning Department recommended that there be no change in the zoning of the property inasmuch as the change would constitute spot zoning. A report was submitted to the Council, but no action was ever taken on the proposal. Nevertheless, the “hold” on Schwegmann’s property remained in effect until January 17, 1979. When the Schwegmann application for a building permit was approved on January 3, 1979, it was the “hold” that prevented issuance of the permit. The hold was imposed despite the fact that the proposal for spot zoning was dead. Although the “hold” was due to expire on January 17, 1979, the Planning Director extended the date until January 31, 1979, after the date on which the two ordinances were to take effect.

On October 25, 1978, the Council passed Resolution No. 34686 to study “whether or not a size limitation should be imposed on retail outlets when they are located in C-l Neighborhood Commercial Districts.” The request for the study was discussed at two public hearings on November 28 and December 19, 1978. Although the resolution called for a study, no written study was performed. At the first public hearing, the Planning Director recommended a size limitation of 15,000 square feet. After the public hearing, the recommendation was reduced to 12,000 square feet.

After the close of the second public hearing, a size limitation of 25,000 square feet was recommended, but the Planning Advisory Board did not approve this limitation.

No notice of the proposed change was published despite the fact that publication is required by the Comprehensive Zoning Code, § XXVIII(2).

On November 15,1978, the Parish Council passed Resolution No. 34859 requesting a study of “whether or not a size limitation should be imposed on residential zoned property when such property is used for off-street parking in connection with the adjoining commercial . . use.” The Schwegmann proposal depended upon the use of an adjacent R-l strip for accessory parking.

A hearing on the study was held on December 19, 1978. At this time, a tentative recommendation for a nine-point set of limitations was made. When counsel for Schwegmann asserted that this plan was outside the scope of the resolution, the Planning Director assumed chairmanship of the meeting, withdrew the plan, and proposed that all parking on adjacent residential property be prohibited.

While notice of the proposed studies were published, no notice of the proposed amendments were published.

On January 10, 1979.the following two ordinances were enacted by the Jefferson Parish Council:

“Ordinance No. 13722
* * * * * *
THE JEFFERSON PARISH COUNCIL HEREBY ORDAINS:
SECTION 1. That Sub-Section 9 entitled ‘Exceptions to Parking Regulations’ of Section XX — Exceptions and Modification of the text of the Comprehensive Zoning Ordinance No. 3813 as amended by the Parish of Jefferson be and the same is hereby repealed.
SECTION 2. BE IT ORDAINED, that Planning Director for the Parish of Jefferson, be and is hereby directed, authorized and empowered to make the necessary and appropriate changes and amendments to the Zoning Ordinance of the Parish of Jefferson.
SECTION 3. BE IT ORDAINED, that the Chairman of the Council of Jefferson Parish be and is hereby empowered, authorized and directed to sign and execute all documents and all acts necessary and proper in the premise to give full force and effect to this ordinance.
The foregoing ordinance having been submitted to a vote, and the vote thereon was as follows: YEAS: 6 NAYS: None ABSENT: None ABSTAINING: 1 (Giar-dina)
This ordinance was declared to be adopted on this the 10th day of January, 1979, to become effective ten (10) days after adoption.” .
“Ordinance No. 13723
* * * * * *
THE JEFFERSON PARISH COUNCIL HEREBY ORDAINS:
SECTION 1. That Section XIII, SubSection 2, Permitted Uses, Paragraph LI, of the text of the Comprehensive Zoning Ordinance of Jefferson Parish No. 3813 be amended to read as follows:
LI. General Retail stores and establishments not exceeding twenty-five thousand (25,000) square feet in gross floor area.
SECTION II. That Section XIII, SubSection, Permitted Uses, Paragraph T, of the text of the Comprehensive Zoning Ordinance of Jefferson Parish No. 3813, be amended to read as follows:
T. Stores, retail not exceeding twenty-five thousand (25,000) Square feet, in gross floor area, including restaurants and cafeterias, however, retail seafood market establishments which are located within 1UU feet of a residential district will only be permitted when approved by an ordinance of no objection by the Jefferson Parish Council, when the Council is satisfied that granting approval will not seriously affect any adjoining property or the general welfare, and providing that all residential property owners within one hundred (100) feet fronting on both sides of the street of such location be notified by certified mail and the entire area be posted.
SECTION III. BE IT FURTHER ORDAINED, that the Planning Director for the Parish of Jefferson, be and he is hereby directed, authorized and empowered to make the necessary and appropriate changes and amendments to the Zoning Ordinance, of the Parish of Jefferson.
SECTION IV. BE IT FURTHER ORDAINED, that the Chairman of the Council of Jefferson Parish be and is hereby empowered, authorized and directed to sign and execute all documents and all acts necessary and proper in the premise to give full force and effect to this ordinance.
SECTION V. This ordinance shall become effective on January 22, 1979.
This ordinance having been submitted to a vote, the vote thereon was as follows: YEAS: 7 NAYS: None ABSENT: None And this ordinance was declared adopted on this the 10th day of January 1979.”

No notice of the proposed change was published prior to the meeting at which the two ordinances were adopted.

Here again, it should be noted that the Schwegmann application was approved on January 3, 1979 and that the “hold” expired on January 17, 1979, prior to the effective dates of both amendments.

The first issue confronted by this court on appeal is the question of the validity of the hold order issued against Schweg-mann’s application for a building permit. The district court provided nine pages of written reasons of judgment. The following was included therein:

“The Court concludes that the Comprehensive Zoning Ordinance did not grant the Council the right to impose a hold upon the issuance of building permits during the pendancy of a study, that, even if such a hold had been authorized, it had expired while the plaintiff’s, Schwegmann’s, application for a building permit was still pending but before the 25,000 square foot size limitation became effective, and that furthermore, the Ordinances No. 13722 and No. 13723 were enacted without complaince with the mandatory procedural formalities of the Comprehensive Zoning Ordinance and are therefore, unenforceable.”

In reaching its conclusion on the validity of the issuance of a hold on the building permit, the court relied upon the procedures prescribed by the Comprehensive Zoning Ordinance. Section XXVIII(4) of the Comprehensive Zoning Ordinance authorizes the issuance of a hold on a building permit only when a petition is filed:

“PERMITS PENDING AMENDMENT— Upon filing with the Planning Director of a petition for the change or amendment to the Comprehensive Zoning Ordinance, and pending final disposition of said amendment, whether by Ordinance, hearing or otherwise, the Safety Director shall not issue a certificate of use and occupancy within the limits of the district sought to be changed or amended for a building, structure, or occupancy that may be unlawful under said proposed change or amendment.” (Emphasis added.)

In the instant case, no petition was ever filed, thus the trial court correctly concluded that there was no authority for the issuance of a hold. Nothing in the Comprehensive Zoning Ordinance allows for the issuance of a “hold” pursuant to a mere study.

The second issue is the validity of the two ordinances. Section XXVIII(2) of the Comprehensive Zoning Code provides for the required public notice:

“PROCEDURE — No amendment, supplement, or change to the Zoning Ordinance or district map shall become effective unless or until:
A. There shall have been a public hearing ¡on such change amendment or supplement before the Planning Director and Planning Advisory Board, at which parties in interest and citizens shall have an opportunity to be heard.
B. Notice of the proposed change and the time and place of the hearing shall have been published once a week for three (3) weeks consecutively in the Official Journal of Jefferson Parish. At least ten (10) days shall elapse between the last date of publication and the date of the hearing.” (Emphasis added.)

In the instant case, no public notice was ever provided; by the language of the statute, the ordinance shall not be effective “unless or until” such notice is provided. Thus the trial judge was clearly correct in his conclusion that the two ordinances are unenforceable. State ex rel. Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932); Beauvais v. D.C. Hall Transport, 49 So.2d 44 (La.App. 4th, 1950); Breaux v. Town of Oberlin, 247 So.2d 195 (La.App. 3rd, 1971).

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    PARISH OF JEFFERSON v. Emily BOUDREAUX, widow of John F. Keller.
    No. 10890.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Byrne W. Dyer, III, Ferdinand M. Lob, Bruce A. North, Asst. Parish Attys., Gretna, for plaintiff-appellee.
    Tucker & Schonekas, Russell J. Schone-kas, New Orleans, for defendant-appellant.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

The Parish of Jefferson filed suit against Mrs. Emily Boudreaux, widow of John F. Keller, to expropriate a strip of ground that commences at the northeast corner of Belle Chasse Highway and Timberlane Drive and which measures 37.86 feet front on Belle Chasse Highway, 883.50 feet along Timber-lane Drive and 37.86 feet front on the existing right of way of Commerce Street. The property, which has commercial and residential zoning, is the eastern' portion of adjoining lots owned by appellant.

The public purpose alleged in plaintiff’s petition is the widening of Timberlane Drive. A tender for the taking in the amount of $62,500 was timely made.

Defendant answered denying the right of taking and claiming that the value of the subject property exceeds in value the amount tendered.

Judgment was rendered allowing the expropriation but increasing the compensation from $62,500 to $96,837.50. The trial court judge concluded that the 18,000 square feet of commercial property taken should be valued at $3.50 per square foot, amounting to $63,000; that the remaining 8,535 square feet of residential footage should be valued at $2.50 per square foot, amounting to $21,-337.50; and that there should be a severance award in the amount of $12,500.

Both plaintiff and defendant appeal; however, plaintiff asks only that the judgment be amended decreasing the award to $71,000.

In Evangeline Parish Police Jury v. Deville, 247 So.2d 258, 260 (La.App. 3d Cir. 1971), the court stated:

“ * * * It is well settled in our jurisprudence that the extent of the property to be expropriated and the location thereof are within the sound discretion of the body possessing the power of eminent domain, and the determination of same will not be interfered with if made in good faith. * * *
“It is also a general rule in such a case that the amount of land and the nature of the acreage taken must be reasonably necessary for the accomplishment of the proposed project. Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491 (1959); Texas Pipeline Company v. Barbe, 229 La. 191, 85 So.2d 260 (1956); Greater Baton Rouge Port Commission v. Watson, et al., supra. However, when the reasonableness of the amount of land or of the nature of the interest taken is challenged and the taker is a political subdivision of the State of Louisiana, such as is' the case herein, the burden is on the defendant landowner to establish that the decision of the taker is unreasonable or has been made in bad faith. * * * ”

In our opinion the defendant, Emily Bou-dreaux Keller, has failed to carry the burden prescribed by Evangeline, supra. The record discloses that: (1) the drainage canal bordering Timberlane Drive has become silted up and filled with debris and this has created a “bottleneck” in the drainage system of Jefferson Parish on the West Bank of the river, increasing the possibility of flooding; and (2) the canal cannot be dug deeper due to the poor cohesive quality of the soil, necessitating widening of the sides of the canal to give it adequate “slope.”

Kenneth Pettle, accepted by the court as a qualified expert in civil engineering, testified that he was familiar with the drainage plans for the Wright Avenue Canal; that the engineering firm he is employed by prepared the master drainage plan for the Ninth Jefferson Parish Drainage District and that 30 feet would be required for “the street plus utilities”; that there were other alternatives open but each with drawbacks; and that these drawbacks, the economics and the logical approach were taken into consideration when the recommendations were made to the Parish.

Pettle further testified that the widening and deepening of the canal will improve the drainage in the general area of Terrytown by moving water out of there to Barataría and eventually to the Hero pump station.

Emile Cloutet, engineering division supervisor of the Parish of Jefferson Department of Public Utilities, also testified that the banks of the canal have been eroding, thereby narrowing the usable width of Tim-berlane Drive to only 18 feet when, in fact, each lane of a two-lane roadway such as this one should be at least 12 feet in width. He also said that the decision of the Parish to acquire 30 feet was made by both the drainage and roadway authorities and that this should allow Timberlane Drive to be adequately widened. Cloutet also testified that this widening would eliminate “the dangerous curb in that asphalt roadway and it would be well away from the canal.” He also testified that the roadway to be widened is approximately 18 feet but that this two-way street should be a minimum of 12 feet each. He also testified that widening of the road would allow the elimination of a dangerous reverse curve condition in Tim-berlane Drive.

Although all of plaintiff’s witnesses testified that there were other methods of solving the drainage problems of this canal, as did defendant’s expert, it was pointed out that all alternative methods would be much more costly for the Parish. We do not find that “unreasonableness” or “bad faith” on the part of the Parish in its exercise of the power of eminent domain required under our jurisprudence if we were to deny the taking of defendant’s property. We find that the acreage being taken is reasonably necessary for accomplishment of the project proposed by Jefferson Parish.

Regarding the challenge to the amount of the award in the instant case, our own standard of review was well articulated in the case of City of New Orleans v. Giraud, 346 So.2d 1113 (La.App.1977), wherein this court stated at page 1118:

“ * * * In ascertaining the market value, much discretion is given to the trial judge in weighing the testimony of experts, and his finding of value based on such expert testimony will not be disturbed unless clearly erroneous. * * ”

It was also noted in Evangeline, supra, at page 261:

“The trial judge has much discretion in determining whose testimony on land values he will accept so long as he satisfies himself that the witness has had an opportunity to familiarize himself with land values in the area. * * *
“In an excellent treatise entitled Eminent Domain in Louisiana having to do with a general analysis of expropriation law and practice by Professors Dakin and Klein of the Louisiana State University Law School, and in which they cite numerous cases supporting their conclusions, we find the following language
* * * * * *
‘ * * * When several witnesses employ the comparable sales approach, the opinion of the witness who relies on sales of property which the court feels are more comparable to the property taken will be accorded greater weight * * * > »

Both plaintiff and defendant produced expert testimony at the trial regarding the value of the land to be taken by the Parish. The plaintiff’s expert Joseph A. Billa relied on comparable sales in the general area which he adjusted upward‘or downward depending on the differences between those properties and the subject property in regard to zoning, time of sale, etc. He concluded that the value of the residential part taken was $2.50 per square foot, or $21,-337.50, that the value of the commercial part was $66,095.05, and that inflation should not be considered a factor in a determination such as this one, based on the system he uses to arrive at an appraisal figure. Mr. Billa added that since this was a “depressed” or forced sale he called the areas of doubt in the owner’s favor, but he did not feel an award of severance was due in the present case.

Frederick Guice testified as an expert for the defendant and said-he did not use com-parables but a market data approach in appraising the property. He concluded that the commercial part of the property was worth $76,487 and the residential part was worth $28,203. He did not feel there was any severance award due for the commercial part of the property, but concluded that the residential portion would suffer a loss of value by 25% per square foot due to the fact that the resulting size and slope of the remaining property, after the taking, would result in significant limitations on what could be built on these lots. Guice did feel, however, that inflation was a factor to be considered and incorporated a figure of 9% in arriving at his appraisal values.

Concerning whether or not to allow a 9% inflationary factor and a severance award to defendant, we agree with the trial judge, who observed:

“Although the present state of the economy may warrant an acknowledgement of an inflationary rate of 9%, the Court is of the opinion, that land, like any other commodity, may or may not be subject to general trends in the economy, may be a variable in itself, and that it would be unreasonable to fix the status of property with a fixed inflationary rate without direct proof and evidence in this area. Therefore, this part of plaintiff’s claim is denied. The Court, does feel that plaintiff’s parcel No. 3, did sustain severance damage in that its lot sizes were reduced by a depth of approximately 38', thus making said lots less attractive, in the opinion of the Court for resale. Based on the formula used by Mr. Guice, and applying the amount set by the Court of $2.50 per sq. ft., this formula entitled plaintiff to a severance award of $12,-500.00.”

Although both experts were well qualified, we must conclude, after a review of the record, that the trial court judge did not abuse his discretion in awarding $3.50 per square foot or $63,000 for the 18,000 square feet of commercial, $2.50 per square foot or $21,337.50 for the 8,535 square feet of residential, and a severance award of $12,500, for a total'award to defendant of $96,837.50.

The judgment of the trial court is affirmed.

AFFIRMED.


text:
    S. Stewart FARNET, Architect v. Frank MINYARD, M.D.
    No. 10897.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Lanny R. Zatzkis, New Orleans, for plaintiff-appellee.
    Frank J. D’Amico, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

This is a suit by S. Stewart Farnet, an architect, for the balance due for services rendered defendant, Frank Minyard, M.D. Defendant, as a defense, contends plaintiff’s renovation plans exceeded their verbal understanding that costs for renovation of defendant’s property would not exceed $50,-000. Plaintiff contends the verbally agreed-to ceiling on the renovation work was $100,000.

Suit was filed on December 12, 1977 and defendant reconvened for damages allegedly resulting from a loss of rentals in the building to be remodeled. The trial court rendered judgment in favor of the plaintiff in the sum of $6,039.49 together with legal interest from the date of judicial demand until paid and for all costs but dismissed the reconventional demand of defendant.

The.trial court found that appellant Dr. Minyard has failed to prove a limitation on the cost of construction that had been agreed upon and that plaintiff can receive compensation for his services despite the cost of construction amounting to more than anticipated by defendant. The trial judge added that an architect has no obligation to inquire into or to keep himself , informed of his client’s financial status.

On September 17, 1975, plaintiff was retained to be the architect for renovation of a building owned by defendant at 718 Barracks Street in the Vieux Carre. The contract called for an architect’s fee of 10% of construction cost without mention of a cost limitation and was the standard owner-architect agreement prepared by the American Institute of Architects. It provided for five different stages of architectural services; schematic design phase, design development phase, construction documents phase, bidding or negotiation phase and construction phase.

Under the schematic design phase and the design development phase, the contract states that the architect shall submit to the owner a statement of probable construction cost based on current area, volume or other unit costs.

The contract also provides for certain percentages of the total fee to be paid at the end of each phase, with 80% of the fee due and owing upon completion of the bidding or negotiation phase.

This contract also covers additional services that an architect might or might not perform, and the principals of this contract agreed to a fixed rate of $35 an hour for those services. The contract further says that this fee will be subject to negotiation if the services of the agreement are not completed within 12 months of the date of the contract.

The pertinent provisions of the contract are:

“The rates and multiples set forth in this Paragraph lib will be subject to renegotiation if the services covered by this Agreement have not been completed within twelve (12) months of the date hereof.
ARTICLE 1
ARCHITECT’S SERVICES
* * * * * *
SCHEMATIC DESIGN PHASE
* * * * * *
1.1.3 The Architect shall submit to the Owner a Statement of Probable Construction Cost based on current area, volume or other unit costs.
DESIGN DEVELOPMENT PHASE
* * * * * *
1.1.5 The Architect shall submit to the Owner a further Statement of Probable Construction Cost.
CONSTRUCTION DOCUMENTS PHASE
* * * * sfc *
1.1.7 The Architect shall advise the Owner of any adjustments to previous Statements of Probable Construction Cost indicated by changes in requirements or general market conditions.
sfc # sfc * * $
ARTICLE 3
CONSTRUCTION COST
* * * * * $
3.5.1 If the lowest bona fide bid or negotiated proposal, the Detailed Cost Estimate or the Statement of Probable Construction Cost exceeds such fixed limit of Construction Cost (including the bidding contingency) established as a condition of this Agreement, the Owner shall (1) give written approval of an increase in such fixed limit, (2) authorize rebidding the Project within a reasonable time, or (3) cooperate in revising the Project scope and quality as required to reduce the Probable Construction Cost. In the case of (3) the Architect, without additional charge, shall modify the Drawings and Specifications as necessary to bring the Construction Cost within the fixed limit. The providing of such service shall be the limit of the Architect’s responsibility in this regard, and having done so, the Architect shall be entitled to compensation in accordance with this Agreement.”

By November of' 1976 two bids had been received from contractors for the proposed •renovations, the lowest of which was for $99,960.66. It was at this time that defendant terminated the services of the architect.

Plaintiff claims, therefore, that at the time of the termination of his services 80% of the total was due in the amount of $8,039.49, less payments of $2,000 already made by Dr. Minyard. Defendant contends there was verbal agreement to hold the cost of construction to $50,000 and further verbal agreement that construction would begin by March 1, 1976. Defendant says that relying on this agreement he evicted tenants as of January of 1976, but received no bids until November 1976, resulting in extensive rental losses.

In the case of Kleinschmidt, Brassette & Associates v. Ayres, 368 So.2d 1153, 1155-56 (La.App. 3d Cir. 1979), the court said:

“An architect employed to prepare plans and specifications for a building, with the understanding that the construction would be accomplished within certain cost limitations, cannot recover compensation for his services when the building cannot be erected except at a cost materially in excess of the amount specified. MacDonnell v. Dreyfous, 144 La. 891, 81 So. 383 (1919); Tsoi v. Ebenezer Baptist Church, 153 So.2d 592 (La.App. 4th Cir. 1963); Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1953).
“On the other hand, where an architect is employed to prepare plans and specifications for a building and there are no cost limitations agreed upon, such architect can recover compensation for his services irrespective of the costs of construction. Moossy v. Huckabay Hospital, Inc., 283 So.2d 699 (1973). Further, if no cost limitations are agreed upon, the architect has no obligation to inquire into or to keep himself informed of his client’s financial status. 6 C.J.S. § 28 Architects, p. 494; Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz.App. 70, 449 P.2d 306 (1969); Texas Delta Upsilon Foundation v. Fehr, 307 S.W.2d 124 (1957).”

Although there was no cost limitation in the contract before the trial court, testimony was allowed regarding the estimated cost of construction because of plaintiff’s obligation under the contract to furnish probable construction costs at various stages of his work.

The plaintiff produced office copies of several invoices which he testified were sent to Dr. Minyard periodically, and which noted that the estimated cost of construction would be $100,000. Although Dr. Min-yard could not recall having received notice of the projected cost at the time that the plaintiff said they were sent (as early as April of 1976) he had actually made two payments of $1,000 each during the period while the plaintiff was performing services under the contract. David Becnel, an architect and former associate of the plaintiff, gave the following testimony regarding cost limitation:

“Q Did you ever have an opportunity to meet with Dr. Minyard and Stewart Farnet relative to cost of the project?
“A Yes, I did. As a matter of fact the first meeting that I met with Mr. Farnet and Dr. Minyard with regard to costs was at the end of the design development phase. That phase more or less was a conclusion of the program requirements. From that point it would go into the construction document phase.
“Q Can you tell us the discussion, as far as cost, how that discussion went?
“A We reviewed the plans and Dr. Min-yard indicated that he spent $50,-000.00 on the project. At that point Mr. Farnet indicated the scope as revised from the preliminary drawings would cost $100,000.00, that there were no objections at the time. As a matter of fact Mr. Farnet and Dr. Minyard discussed the possibility of securing the additional $50,000.00 including the refinancing of the property.
“Q Were there any subsequent discussions in your presence, let’s say subsequent to the time that bids were obtained, with Dr. Minyard relative to going forward or stopping the project?
“A No. Well, during the construction document phase we had to finalize and specify certain products that would go into the building. This included the kitchen cabinets, bathroom accessories and what not, and we met with him on a number of occasions specifying these things and we proceeded with the project and he was, I’m sure, aware of the cost of the project at that time because of our earlier meeting at the end of the development stage. During the-construction document phase we were proceeding on the basis that the budget was $100,000.00.
“Q How long do you think the construction document phase went on for?
“A I can’t recall. I think it was the spring of ’76 I believe was the beginning of the construction document phase and I think it ended in the fall, sometime in the fall. I’m not sure of the date.”

Mr. Farnet testified that early in their discussions he advised Dr. Minyard that he might expect to spend as much as $100,000 on the job; that an invoice mailed to Dr. Minyard on April 1, 1976 set forth a progress payment and stated that estimated costs would be $100,000; that in discussions subsequent to April 1, 1976 he also advised Dr. Minyard that the cost of the work anticipated by Dr. Minyard would be $100,000; that in addition to preparing plans he had the responsibility to see that the building would be approved for issuance of the permit by the Vieux Carre Commission and that this caused delays.

There is testimony and evidence in the record that Dr. Minyard sent $2,000 to plaintiff in payment of invoices for work performed by plaintiff under the contract and that defendant made attempts to borrow money. Defendant also testified that he never intended to spend in excess of $50,000 and repeatedly told plaintiff he could not borrow or spend more than $50,-000. Defendant further said he had not agreed to construction costs of $100,000.

In the case of Moossy v. Huckabay Hospital, Inc., 283 So.2d 699 (La.1973), the Court was also presented with a contract for architectural services which contained no cost limitation. In that case, the fee was based on a percentage of the estimated project cost, but the bids received were almost double that of the estimate by the architect, and the Court awarded the contract percentage of the estimated cost.

In the present case, however, no such problem presents itself. The trial court concluded that estimated cost was, apparently, $100,000, and the record establishes that the lowest bid received was for almost this identical amount.

In regard to the issue of the portion of the contract requiring renegotiation of fees when the work has not been completed within one year of the contract, the weight of the testimony of all of the experts was that this portion of the contract, drawn up generally to favor the architect, was to protect the architect from inflationary rises in costs beyond projected estimates. This is an issue, once again, not involved in the present case, and the fact that fees were not renegotiated does not render the plaintiff in noncompliance with the contract. Moreover, a reading of the contract indicates that this paragraph applied only to the optional architectural services listed under another section of the contract and for which the parties had agreed on a fee of $35 an hour.

The trial judge faced with contradictory testimony relative to the amount to be spent on the renovations determined that plaintiff had proven his case — a determination which, under Louisiana jurisprudence, we are bound by unless we find manifest error in the trial court’s findings.

Considering the record in its entirety we find that the trial court did not abuse its much discretion and certainly was not clearly wrong in concluding that plaintiff had satisfied his obligation under the contract and that there was not an understanding between plaintiff and defendant to limit costs of remodeling to $50,000.

The trial court also concluded that defendant had not proven his reconventional demand for rent losses caused by his evicting tenants in' anticipation of renovation work at the Barracks Street property. Defendant evicted his tenants as of January 1976. In view of certain understandings still to be finalized with the Vieux Carre Commission at that time, this action by defendant was premature. We agree with the trial court that the evidence does not support a finding that plaintiff is at fault for defendant’s rent losses. We therefore find that the trial judge properly denied defendant’s reconventional demand.

The judgment of the trial court is affirmed in all respects.

AFFIRMED.


author: CHEHARDY, Judge. REDMANN, Judge,

text:
    John C. ARTHURS, Jean C. Felts, Michael J. Rapier, Alvin L. Smith, and F. Porche Waguespack v. Ernest N. MORIAL, Individually, and as Mayor of the City of New Orleans.
    No. 10931.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Writ Refused June 6, 1980.
    Milling, Benson, Woodward, Hillyer, Pier-son & Miller, Michael J. Molony, Jr., and Frederick J. Plaeger, II, New Orleans, for The Chamber/New Orleans and the River Region, and Norman R. Kerth, intervenors-appellants.
    Salvador Anzelmo, City Atty., Debra J. Pischman, Asst. City Atty., New Orleans, for defendant-appellee.
    Sidney M. Bach, New Orleans, for the Police Ass’n of Louisiana, Local 253, inter-venor-appellee.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

Ernest N. Morial, Mayor of the City of New Orleans, was sued on February 20, 1979 by five taxpaying citizens of New Orleans who sought to enjoin the Mayor from entering into compulsory binding arbitration with the Police Association of Louisiana, Local 253. Plaintiffs also ask for a declaratory judgment regarding the May- or’s right to agree to compulsory binding arbitration with the Police Association.

The Chamber/New Orleans and River Region and Norman R. Kerth, individually and as president of the Chamber, sought and were granted leave of court to intervene in the suit and join with plaintiffs in the relief demanded against Mayor Morial. The Police Association of Louisiana, Local 253, intervened to oppose the relief sought by the plaintiffs and the Chamber.

The Police Association, in negotiating a collective bargaining agreement with the City to be recognized as bargaining agent for certain of the New Orleans Police engaged in a work stoppage, demanded from the Mayor an agreement to submit all unresolved issues of an economic nature to compulsory arbitration.

The trial court denied the request for a declaratory judgment which would declare that the Mayor of the City of New Orleans is without authority to enter into binding-arbitration with a police union. Injunctive relief to prevent the Mayor from entering into a binding arbitration agreement with the union was also denied.

On September 24, 1979, pending appeal, the court issued an order that the interve-nors-appellants, The Chamber/New Orleans and River Region and Norman R. Kerth, show cause by brief why this appeal should not be dismissed for lack of jurisdiction. However, on October 22, 1979, this court recalled, rescinded and set aside the show cause order and stated:

“ * * * Although the work stoppage has terminated, because of the existence of an ongoing dispute relating to the question of recognition of a bargaining agent and the non-existence of a bargaining agreement, there exists a justiciable controversy.
“Under these circumstances, we conclude that the issue involved in the petition for Declaratory Judgment, seeking to declare that the Mayor of the City of New Orleans is without authority to enter into binding arbitration with a police union, is not moot. See LSA-C.C.P. articles 1875, 1876 and 1881. * * *”

LSA-C.C.P. art. 1876 provides:

“The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

The trial court refused to render a declaratory judgment under the authority of LSA-C.C.P. art. 1876 for the reasons that:

“ * * * 1, [A]ny such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the within proceedings; 2, no form of agreement has been shown to the court of the kind and character of which plaintiffs complain, and without being able to review any such agreement, it would be impossible for the court to determine whether or not it would be violative of any provisions of the Constitution or laws of the State of Louisiana; 3, plaintiffs have failed to cite any constitutional or statutory provisions which they allege such an agreement would reprobate.”

The following exchange between the trial judge and counsel capsules the court’s reason for denying the requested injunction:

“THE COURT:
I understand that a public official — and certainly it’s true of the Mayor of the City of New Orleans, when one does his duty and carries out his oath of office— and I have no reason to believe that the Mayor of this City will do anything other than that — as late as a recent case, the Courts have held that the presumption is that a public official will do his duty in accordance with the law. I think that until such time as the Mayor does something that is not within the law, I cannot enjoin him from doing something that may never come about.
MR. McCALL:
Your Honor, as I appreciate the witness’ testimony, it is that he does not believe that he may properly submit these matters to binding arbitration. He has said, however, that he may be pushed to a point where, in order to prevent the collapse of this City’s function, that he may sign this, notwithstanding the fact that he believes that it is improper. Now, he has not said that he is going to set the law at naught. But we are asking this court to add to his normal disposition, to do what he thinks is right, its order enjoining him from doing precisely that—
THE COURT:
This Court will never enjoin somebody from doing something that is wrong for them to do until they do it.
MR. McCALL:
Forgive me, Your Honor, but have I missed something? I thought that an injunction was to prevent the occurrence of something.
THE COURT:
But not in the case of a public official doing his duty. You show me any authority of that and I will do it.
MR. McCALL:
The Mayor is no different than any other citizen—
THE COURT:
I will not condemn the Mayor, to issue an injunction to tell , him to do his duty. The Mayor knows what his duty is and I am .satisfied he is going to do his duty. When the time comes that it is necessary for him to do otherwise, then we will reach that situation at that time.”

In the present case the challenged governmental action has not only ceased but never came into existence, i. e., Mayor Morial never did actually enter into binding arbitration with the Police Association, although he had agreed at one point in the strike to submit all unresolved issues of an economic nature to compulsory arbitration.

Furthermore, the challenged governmental action rests on the contingencies of another strike and the discretionary act of the Mayor, who testified:

“Under the Home Rule Charter, I don’t think it’s within my scope to sign any agreement providing for compulsory binding arbitration. However, if the situation becomes so critical that the only way to get the employees, perhaps, to return to work, I may not have any choice other than doing that.
& # 5j< $ * $
“ * * * I would say that to the union officials, that I am signing it because I have no other choice, because the strike is having a deberating [sic] effect on the life of this community. As Mayor of the City of New Orleans, I may reach a point, because of pressures placed upon us, and threats of other strikes, all of these concerted actions, and based on the statements made of one Mr. Bach’s clients, they may tend to bring the City to its knees. I may have to yield in some areas to save the City.”

It is, therefore, only under the above-described circumstances and if there were another strike that the Mayor would even consider signing a document he believes to be an illegal one.

Although the Mayor has stated that the Police Association of Louisiana, Local 253 is still attempting to be recognized as the bargaining representative for the New Orleans Police, the union has not succeeded at this point, adding just another contingency to the present case.-

The trial judge concluded that a declaratory judgment would not terminate the uncertainty or controversy giving rise to these proceedings. The court acted within the authority of LSA-C.C.P. art. 1876 in refusing to render a declaratory judgment.

The trial judge refused to order the injunctive relief requested ancillary to the declaratory proceeding. In view of the refusal of declaratory relief, the injunction must also be denied. Additionally under these facts, we do not find an abuse by the trial court of the broad discretion it enjoys in determining whether to grant or refuse a preliminary injunction. See Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1st Cir. 1970).

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting in part.

In my opinion plaintiffs are entitled to a declaratory judgment on the question of whether the Mayor has authority over wages and other “economic” issues.


text:
    Pauline Halder MOUTON v. Jonathan K. MOUTON.
    No. 10936.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Montgomery, Barnett, Brown & Read, Sylvia Landry Holder, New Orleans, for plaintiff-appellee.
    Leon C. Vial, III, Hahnville, for defendant-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

The plaintiff-appellee, Pauline Haider, wife of Jonathan K. Mouton, was granted a judgment decreeing a separation a mensa et thoro between herself and her husband on November 21, 1978 after a trial on the merits of the case.

As part of this judgment plaintiff was awarded $950 as attorney fees to be paid out of the community by the defendant, who now appeals, arguing that this award was excessive.

It is a well-established rule that the value of the services for attorney fees in the wife’s suit against her husband for a separation must be based on quantum me-ruit, and not on any agreement of the wife with her attorney fixing these fees in order for the community to be bound. Gallagher v. Gallagher, 190 So.2d 916 (La.App. 2d Cir. 1966).

Attorney fees must be arrived at in each case based on the amount of work involved and the ability of the defendant to pay, as well as the nature and circumstances of the particular case. Mouton, Champagne & Colomb v. Bernard, 79 So.2d 639 (La.App. 1st Cir. 1955).

Appellant argues that this was a simple uncontested case of acquiring a legal separation, almost by default, because although the case was tried on the merits, no opposition was presented by defendant or his attorney.

At the trial the plaintiffs attorney testified that she usually charges $40 to $50 an-hour but agreed to charge Mrs. Mouton only $35 an hour, based on her ability to pay. Although she could not remember the total amount of hours, she testified th.at she had sent the plaintiff a bill for $1,200. She further testified that she began handling the case immediately after the original petition was filed. Thereafter she filed a supplemental petition and argued a motion for alimony pendente lite and child support. She also filed a motion for judgment on the pleadings, made a court appearance to argue that motion, and filed a motion for a new trial on the judgment of alimony and child support.

The trial judge, being familiar with the case from its inception, is in the best position to fix reasonable attorney fees, and we cannot find any evidence of manifest error.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


text:
    WAGUESPACK, DUPREE & FELTS, INC. v. URBAN REDEVELOPMENTS, INC.
    No. 10968.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.

      Chaffe, McCall, Phillips, Toler & Sarpy, Dennis John Hauge, New Orleans, for plaintiff-appellant.
    Albert J. Huddleston, Kenner, for defendant-appellee.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff appeals from a judgment denying its claim for $7,500 arising out of a contract to appraise property. . The agreement entered into with the temporary liquidator for the defendant corporation retained plaintiff to make an appraisal of a 540-unit apartment complex at 1400 West Esplanade Avenue in Kenner, Louisiana, belonging to Urban Redevelopments, Inc. The contract also provided for interest and attorney fees.

On May 25,1977, Edwin C. Dorvin, Jr., in his capacity as 50% shareholder, petitioned the Twenty-fourth Judicial District Court to liquidate, dissolve and wind up the affairs of the corporation “under the supervision of the court pursuant to a plan of liquidation to be submitted to and approved by the court.”

Also on May 25, 1977, Dr. Dorvin was appointed “temporary liquidator” to serve as such pending a trial on the rule to show cause why he should not be appointed “judicial liquidator” of the corporation. On or about June 20, 1977, an “Answer and Response to the Rule to Show Cause” was filed which set forth special defenses and prayed for dismissal of the liquidation proceedings and dismissal of the temporary liquidator. On August 26, 1977, Dr. Dorvin signed the subject employment contract as “temporary liquidator,” without obtaining an order from the court specifically authorizing him to do so, nor was such contract subsequently approved by the court.

On September 21, 1977, the liquidation proceedings were dismissed with prejudice, and Dr. Dorvin was discharged as temporary liquidator. On September 23,1977, the appraisal report was delivered to Dr. Dor-vin and has never come into the possession of stockholders, directors or executive officers of Urban Redevelopments, Inc., nor did they authorize Dr. Dorvin to enter the contract or ratify his actions in regard to the contract.

Plaintiff filed suit' against defendant corporation on April 4, 1978, and on May 9, 1978 filed a supplemental and amending petition naming Dr. Edwin C. Dorvin, Jr., as a defendant and alleging personal liability of Dr. Dorvin in the alternative for having ordered the subject appraisal without obtaining the necessary authority from the Board of Directors of Urban Redevelopments, Inc.

On December 21, 1978, the court signed a judgment maintaining exceptions of no right and no cause of action filed by Dr. Dorvin.

Plaintiff, in the agreement that forms the basis of this suit, was put on notice that Dr. Dorvin’s powers were those of a temporary liquidator. Having communicated his authority, upon entering into the contract with plaintiff, the temporary liquidator is not answerable to plaintiff for anything done beyond his authority unless he had entered into a personal guarantee. The record does not disclose any allegations of personal guarantees. See LSA-C.C. art. 3012.

The legislature has established a distinction between voluntary and involuntary liquidations and has established different procedural requirements for each. Regarding judicial dissolution proceedings, as was the case here, LSA-R.S. 12:146 states:

“A. Dissolution under supervision by the court is a summary proceeding.
“B. Each judicial liquidator confirmed or appointed as provided in R.S. 12:142(D), 142(E) or 143(E), after giving such bond as the court may require for the faithful .performance of his duties, shall proceed with the liquidation of the affairs of the corporation under the supervision of the court.
“C. A judicial liquidator in dissolution proceedings shall have full authority to retain counsel and auditors, and to prosecute and defend actions; shall have authority to compromise, compound and settle claims by or against the corporation upon such terms as he deems best, subject to supervision by the court; and shall have such other powers as the court may in its discretion grant, which, without limiting the scope of the court’s discretion, may include any or all powers enumerated in R.S. 12:145(C). A judicial liquidator shall have no power or right to have an inventory of the corporation’s assets made by a notary public.
“D. The court may enter such injunc-tive and other orders, ex parte or on such notice as the court may prescribe, as it may deem appropriate, except that the court shall not order or permit the making of an inventory of the corporation’s assets by a notary public.”

Plaintiff argues that the above statute grants all of the powers of LSA-R.S. 12:145 to a judicial liquidator unless the court specifically places limitations on his powers. They further contend that no such restrictions were placed on Dr. Dorvin’s powers because the court order of May 25, 1977 appointed him temporary liquidator of Urban Redevelopments, Inc., “with all of the duties and powers provided by law.” The plaintiff concludes, therefore, that under the present circumstances LSA-R.S. 12:145(C)(6) and (16) were powers granted to Dr. Dorvin. LSA-R.S. 12:145 states in pertinent part:

“C. Except as may otherwise be provided by the shareholders or incorpora-tors authorizing the dissolution, the liquidator shall be vested with full authority:
* * * * * >):
(6) To carry on temporarily the business of the corporation as a going concern, when it is necessary for the purpose of properly and economically liquidating the affairs of the corporation;
# * # # * $
(16) In general, to do any and all things which may be necessary, proper or convenient for the purpose of liquidating the corporation.”

Moreover, since LSA-R.S. 12:146 specifically grants the judicial liquidator the power to retain counsel and auditors without the court’s approval, plaintiff submits that Dr. Dorvin had two sources of authorization for his contract with their corporation.

We cannot agree. Rather we agree with the trial court judge’s analysis of the above-cited law, which was well articulated in his reasons for judgment:

“ * * * More specifically, the May 25, 1977 Court Order, which vested the Temporary Liquidator ‘with all of the duties and powers provided by law’, only gave the Temporary Liquidator those powers enumerated in Section 146, because it was a judicially-supervised dissolution.
“Section 146(C) seems, to make almost every type of action of the liquidator under Court control because it says that the liquidator . . shall have such other powers as the court may in its discretion grant, which, without limiting the scope of the court’s discretion, may include any or all powers enumerated in R.S. 12:145(C) . . ’ (emphasis added).
“Since the foregoing language directs that a Court MAY include any or all powers enumerated in Section 145 (the section dealing with out of court dissolu-tions), since there is no such Court Order in the liquidation proceedings of Urban Redevelopments, Inc., and since there was no Court Order authorizing the Temporary Liquidator to enter into the contract with Waguespack, Dupree & Felts, Inc., then the Court feels that the Temporary Liquidator lacked the requisite legal authority to bind Urban Redevelopments, Inc., to such a contract. * * * ”

One may also note that LSA-R.S. 12:146(C) expressly prohibits the Liquidator from having an inventory of the corporate assets made by a notary public.

The doctrine of apparent authority is not applicable in this case. As explained in Lilliedahl & Mitchel v. Avoyelles Trust & Sav., 352 So.2d 781, 787 (La.App. 3d Cir. 1977):

“ * * * Apparent authority is a doctrine created by the courts to protect persons dealing in good faith with corporate officials where the corporation has taken such action or inaction as to justify a belief that the official has acted with authority. The doctrine has two requirements: (1) The principal must make some form of manifestation to an innocent third party; and (2) The third party must rely reasonably on the purported authority of the agent as a result of the principal’s manifestations. Krautkramer Ultrasonics, Inc. v. Port Allen Marine Services, Inc., 248 So.2d 336 (La.App. 4th Cir. 1971). The reasonableness of the reliance is determined from all the facts and circumstances of the case. Analab, Inc. v. Bank of the South, 271 So.2d 73 (La.App. 4th Cir. 1972).”

Dr. Dorvin’s signature as temporary liquidator should have alerted plaintiff to determine the limits of Dorvin’s authority. An investigation would have disclosed that a temporary liquidator did not have the authority to bind Urban Redevelopments, Inc.

For the reasons assigned herein the trial court’s judgment is affirmed.

AFFIRMED.


text:
    Roger Wayne SMITH v. CAJUN INSULATION, INC., et al.
    No. 10981.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.

      J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal and Darryl J. Foster, New Orleans, for Cajun Insulation, Inc., and Emp. Nat. Ins. Co., defendants-appellees.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

In Suit No. 8970 in the 29th Judicial District Court, Roger Wayne Smith, compromised his workmen’s compensation claim which was approved by the court on September 18, 1978. In December of 1978, Smith filed suit to annul this compromise, alleging only that the court did not discuss the proposed compromise with him as required by LSA-R.S. 23:1272.

The exception of no cause of action and motion for summary judgment filed by defendants-appellees was sustainéd and plaintiff’s demands were dismissed at his cost. The trial court in the instant case held that although the judge in Suit No. 8970 had not discussed the settlement and its terms with plaintiff as required by LSA-R.S. 23:1272, he had in his judgment approving settlement stated:

“The court considering the pleadings and annexed medical reports, having conferred with counsel for the Employee, and being of the opinion that there exists a bona fide dispute between the parties as set out in the pleadings, and that the proposed settlement is fair and equitable and should be approved.”

The trial judge in the case before us held that this recitation in the judgment approving Smith’s compromise settlement satisfied the requirement of LSA-R.S. 23:1272 and thereafter to successfully attack a compromised judgment the mandate of LSA-R.S. 23:1273 must be heeded: “* * * the said judgment shall not thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer.”

The issue before us is whether or not the judge’s failure to discuss the settlement and its terms with the employee before approving a judgment of compromise is grounds for nullity of such compromise where there are no allegations of fraud or misrepresentation by the employer or his insurer as required by LSA-R.S. 23:1273.

LSA-R.S. 23:1272, in discussing approval of compromise by a court, states in part:

“The agreement entered into between the employee or- his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every ease, discuss the settlement and its terms with the employee or his dependents. * * *”

and LSA-R.S. 23:1273 provides:

“If the court believes the compromise agreed upon to be fair and equitable, and that it was entered into primarily to avoid or to end litigation, it shall approve the same, and immediately enter it as the judgment of the court, and the said judgment shall not thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. The judge may, however, refuse to approve the settlement if he does not believe that it does substantial justice to the parties.”

Under LSA-R.S. 23:1272, the judge must discuss the settlement with the employee before approving the judgment. However, if he does not, the approved compromise will not be disturbed absent the fraud or misrepresentation required by LSA-R.S. 23:1273. There are no doubt instances when the. failure of the court to discuss a settlement with an employee could result in a loss to the claimant. Had plaintiff alleged that if the judge had spoken to him he would not have made the settlement or had he alleged that the failure of the court to discuss a settlement resulted in a loss, plaintiff’s action to annul the compromise would have more merit. In that case failure to satisfy the admonition of LSA-R.S. 23:1272 would of itself have worked the harm to plaintiff that this section seeks to prevent.

However, that is not the situation confronting the court. We note that before approving the compromise complained of by plaintiff, the court discussed the matter with plaintiff’s attorney. Furthermore, plaintiff has not alleged or argued that fraud or misrepresentation required by LSA-R.S. 23:1273 if the judgment of compromise is to be set aside.

Under LSA-R.S. 23:1271, compensation settlements, such as the one before this court, are only authorized when a bona fide dispute exists between the employer and employee as to the “existence, nature, extent or duration of the injury or disability involved.” The facts establish that there was a bona fide dispute, that a joint petition for approval of this agreement was prepared, signed and verified by plaintiff and presented to the court for consideration. To sum up, the compromise agreement complained of satisfied the substantive requirement of LSA-R.S. 23:1271 and it cannot be set aside without a showing of fraud or misrepresentation on the part of the employer or its insurer. See Jenkins v. Pemberton, 87 So.2d 775 (La.App.2d Cir. 1956).

We agree with the trial court’s conclusion that while failure of the court to discuss the settlement with the employee might well afford a right to seek redress on the part of the employee, it does not override or take precedence over the specific restriction of LSA-R.S. 23:1273 that fraud or misrepresentation on the part of the employer or the insurer is essential if the judgment of compromise is to be set aside.

In view of our interpretation of LSA-R.S. 23:1272 and 23:1273, it is not necessary to discuss the issue of accord and satisfaction as an estoppel of plaintiff’s proceeding any further against the employer or his insurer.

For the reasons assigned herein the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting.

In my opinion § 1273 applies only to compromises approved in compliance with § 1272 and therefore does not apply to this compromise. § 1272’s language is strongly indicative of an essential prerequisite to a compromise: the judge “shall, in any case, discuss the settlement and its terms with the employee . . . .”


author: HOOD, Judge.

text:
    Garnell LAWRENCE v. Clemmie HARTSUCK, Individually and D/B/A Ebony Barn Bar.
    No. 10930.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.

      George G. Angelus, New Orleans, for plaintiff-appellant.
    Before SAMUEL, SCHOTT and HOOD, JJ.

       This opinion was written by Judge Hood before his death and is rendered unanimously by Samuel and Schott, JJ.

   HOOD, Judge.

Plaintiff, Garnell Lawrence, claims damages for personal injuries he sustained when he was shot with a pistol by defendant, Clemmie Hartsuck. Charity Hospital of Louisiana at New Orleans intervened, seeking to recover from defendant its charges for medical and hospital services rendered to plaintiff. Judgment was rendered by the trial court in favor of plaintiff and against defendant for $2,500.00, and in favor of intervenor and against defendant for $2,542.35. Plaintiff Lawrence appealed.

The sole issue presented is whether the amount of the award made to plaintiff is inadequate and should be increased.

Defendant Hartsuck shot plaintiff in the head with a .22 caliber pistol on February 27, 1977. The trial judge found that there was no justifiable reason for defendant to commit that act, and that defendant thus is liable to plaintiff for damages and to inter-venor for medical and hospital services rendered to plaintiff. Judgment thus was rendered making the awards above set out. Since defendant Hartsuck has not appealed or answered the appeal, no issue of liability is presented. Plaintiff contends that the award made to him is inadequate and should be increased.

The bullet fired by defendant struck plaintiff in the area of his right forehead. It fragmented upon impact, and a part of it pierced the innermost layer of the brain, in the area of the right frontal lobe. A part of the bullet exited from plaintiff’s skull about three inches behind the point of entry, but the remaining portions of the bullet still remain embedded in plaintiff’s brain. After the shooting a part of plaintiff’s brain exuded from the point where the bullet entered plaintiff’s forehead. He was hospitalized for about three weeks, and during most of that time he was in critical condition. Blood transfusions, electroencephalograms and arterial studies were performed, and several surgical procedures were undertaken, including a wide craniec-tomy over the right forehead, with the removal of some pieces of bone from the skull and the cleaning and debriding of the wound to a depth of about six centimeters into the substance of the brain. The bullet entered through all three membranes of the brain. After being released from the hospital, Lawrence was seen regularly on an out-patient basis up to the time of the trial, and he was hospitalized briefly on two other occasions. At least three bleeding veins of large size in plaintiff’s brain were interrupted by the gun shot wound, and these veins were electrocoagulated thus permanently cutting them off from circulation.

As a result of the above gun shot wound, plaintiff has experienced weakness and numbness of his left leg, headaches and dizziness, at least two epileptic-type seizures, some personality changes, and he now has substantial and permanent scars or disfigurement of his face. The bullet wound left some scarring in the brain tissues and the seizures which he is experiencing are caused by that scarring. The only medical expert who was called as a witness described the seizures as an abnormal electric discharge across the cortex of the brain, causing abnormal firing of the neurons that control the muscles of the body, and producing the loss of consciousness, with violent jerking of the arms and legs. That physician also testified that his seizures will be a “life-long problem,” that they are known as “traumatic epilepsy,” and they are accompanied by violent convulsions and loss of consciousness.

Plaintiff now has a loss of bone over the right forehead about the size of a silver dollar, which will render him more subject to serious trauma, and he has a remaining cosmetic sear on his forehead. In an effort to conceal the scar, plaintiff has tried to arrange his hair differently, and he wears hats to cover the disfigurement. He testified that he suffers considerable embarrassment.

Lawrence complains now of dizziness and blurring of his vision, numbness and stiffness of his legs, the inability to remember as he did before the accident, and pain in the back of his head about every three months. He was not employed at the time the shooting occurred. After the accident, however, he obtained a job but he was fired in March, 1978. He claims that the reason for his discharge was the fact that he had had an injury to his head and was subject to seizures. Since that time he has been able to obtain employment only as a janitor.

At the conclusion of the trial, and in response to questions asked by the trial judge, defendant testified that she owned the bar which she was operating at the time of the accident, that she has not filed income tax returns since 1976, and that she earns a clear profit from the bar of only about $200.00 per month. Defendant did not plead her inability to pay a judgment, and she did not suggest prior to the time she was questioned by the trial judge that she was impecunious.

The trial judge concluded, as shown in his oral reasons for judgment, that there was no justification for defendant’s use of a gun and that she thus was liable to plaintiff for the damages he sustained. The judge also concluded, however, that “it’s obvious that the defendant could not respond to a judgment of the amount which would be justified by the injuries suffered by the plaintiff,” and that under those circumstances “the court can only render a comparatively small judgment.” He thereupon rendered the judgment from which this appeal has been taken.

We are aware of the limited function of intermediate appellate courts in reviewing awards of general damages made by trial courts. See Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). In the instant suit, however', the injuries sustained by plaintiff are substantial, and most of them are of a permanent nature. We think the trial court abused its discretion in awarding plaintiff only $2;500.00 as general damages, despite defendant’s testimony as to her assets and income. In our view, considering all of the circumstances involved here, an award of $50,000.00 would be more in keeping with the damages sustained by plaintiff.

For the reasons assigned, the judgment appealed from is amended by increasing the amount of the award made to plaintiff from $2,500.00 to $50,000.00. In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellee.

AMENDED and AFFIRMED.


text:
    Peggy Poche MADERE et al. v. SOUTHERN PACIFIC TRANSPORTATION CO. et al.
    No. 10958.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Leon C. Vial, III, Hahnville, for plaintiff-appellant. .
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT, and HOOD, JJ.

       This opinion was written by Judge Hood before his death and is rendered unanimously by Samuel and Schott, JJ.

   HOOD, Judge.

This is a wrongful death action instituted by Mrs. Peggy Poche Madere, individually and as natural tutrix for her two minor children. Plaintiff’s husband, James L. Madere, Sr., was killed when his pick-up truck was struck by a train. Defendants are Southern Pacific Transportation Company and Orlan L. Alleman. Judgment was rendered by the trial court in favor of defendants, and plaintiff appealed. We affirm.

The question presented is whether the defendant railroad was negligent and, if so, whether the decedent also was negligent barring plaintiff from recovery.

The accident occurred about 9:00 a. m. on October 18, 1973, at a point where a private road crosses the main line of the Southern Pacific Railroad, in St. Charles Parish. The decedent was driving his truck south on the private road, and as he attempted to cross the railroad, his vehicle was struck on the right side by a freight train which was travelling east and was being operated by the defendant railroad. Defendant Alle-man was the engineer on that train. Plaintiff’s husband was killed as a result of the accident.

The railroad track at that point runs parallel to and along the north side of U.S. Highway 90. The road on which the decedent was travelling ran north from the highway, across the track to a pasture located a short distance north of it. The road was overgrown with grass, except for two gravel strips which accommodated the right and left wheels of a vehicle. Very few vehicles travelled on the road or the crossing at that point. .

The crossing was unmarked and was in poor condition. The track was elevated about four feet above the general surface of the roadway, with about a 15 or 20 degree slope on either side of it. There were ruts on both sides of each rail, estimated to be eight or ten inches deep. The railroad was straight for a distance of at least a mile on the west side of the crossing, but there were trees and shrubs on both sides of the track which obstructed the view of a motorist to some extent as he approached the crossing.

The decedent used the crossing and the road on infrequent occasions to go squirrel hunting. Earlier on the day of the accident, he drove his truck north from Highway 90, across the track, and he parked it in the pasture to which the road led, about 70 feet north of the railroad. About 9:00 a. m. that morning he returned to his truck, and began to drive it south on the above road toward Highway 90. The vehicle he was driving was struck by the train as he was attempting to negotiate the crossing.

The evidence establishes that Mr. Madere did not stop his truck when he reached the crossing, or at any time before he proceeded to cross the railroad track. The brakeman, who was seated on the left side of the locomotive, saw the truck immediately before it began to cross the track. The engineer, who was seated on the right side of the train, was unable to see the vehicle until the moment of the impact, when the front of the truck crossed the south rail.

The freight train involved in the accident was one or two miles long, and it was travelling at a speed of about 35 miles per hour. The headlight on the locomotive was burning, the whistle was blown intermittently, and the bell was ringing from a point about one-fourth of a mile before the locomotive reached the crossing, until the collision occurred. The evidence shows that the train could not be stopped suddenly. It was brought to a stop as soon as that reasonably could be accomplished after the collision, but even so the locomotive came to rest 49 cars past the crossing.

The trial judge concluded that the railroad, through its agents and employees, was free from negligence, and that it thus was not liable to plaintiff for the damages she and her children sustained. He held, further, that the decedent also was negligent in crossing the track without first ascertaining that it was safe for him to do so, and that plaintiff thus would be barred from recovery by the contributory negligence of the decedent even if the railroad was found to be at fault. We cannot say that the trial judge erred in reaching those conclusions.

Plaintiff contends, however, that the crossing where this accident occurred was a “dangerous trap,” and that Southern Pacific is liable because of its failure to maintain that crossing in a safe condition.

Although the crossing was used infrequently, those who lived in that area used it from time to time and they did not mention any particular danger or difficulty in negotiating it. The decedent used it that morning, only a short time before the accident occurred. The Claims Agent for the railroad, who investigated the accident, drove his vehicle over the crossing from both directions early that afternoon. It is apparent, therefore, that the crossing could be traversed, even though it was rough, and that the decedent was familiar with its condition and the fact that there was a railroad at that location.

Photographs taken at the scene on the day of the accident show that Mr. Madere could have seen the train approaching when his truck reached a point within 25 to 50 feet of the track. The decedent lived in that area, and his widow confirmed the fact that he knew that this was the main line of the Southern Pacific Railroad in that area. As already noted, the headlight of the train was burning, the whistle was being blown, and the bell was ringing after the train reached a point within one-fourth of a mile from the crossing.

Under these circumstances we find, as did the trial judge, that the accident resulted solely from the negligence of the decedent, that the operators of the train were free from negligence, and that the defendant railroad and its engineer are not liable in damages to plaintiff as a result of this accident.

The judgment appealed from is affirmed. The costs of this appeal are' assessed to plaintiff-appellant.

AFFIRMED.