author: LEMMON, Justice. DENNIS, Justice,

text:
    In re P.V.W.
    No. 82-CA-2637.
    Supreme Court of Louisiana.
    Dec. 10, 1982.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Janice B. Unland, Staff Atty., Ronald C. Davis, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Paul G. Mayoral, Asst. Dist. Atty., John A. Hollister, McNulty, O’Connor, Stakelum & Anderson, Susan E. Henning, Stephen M. Sullivan, New Orleans, for appellant.
    Cheryl B. Horton, Max Nathan, Jr., Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for appellee.
   LEMMON, Justice.

This is an action for a declaratory judgment filed in juvenile court by the parents of a new born infant whose brain allegedly was severely and irreversibly damaged at birth and who has been in a comatose state since birth, with life sustained only by a mechanical ventilator. The attending neo-natalists and the hospital joined as petitioners, requesting that the juvenile court conduct an evidentiary hearing and declare that the child is in a “continued profound comatose state”, with “no reasonable medical chance of recovery” from that condition, so as to be governed by the provisions of La.R.S. 40:1299.36.1 C.

After appointing an attorney to represent the child and appointing an independent medical expert to render an opinion in the matter, the juvenile court on its own motion ordered that the attorney general and the Department of Health and Human Resources be made respondents. When the district attorney (who had been served with a copy of the petition) intervened and filed exceptions, the juvenile court ordered that that official also be made a respondent.

After a pretrial conference, but before the date set for the hearing, the juvenile court rendered a judgment which dismissed the suit on the bases that (1) the juvenile court did not have jurisdiction over the subject matter, (2) there was no justiciable issue, so that the court could not grant a declaratory judgment or any other relief, and (3) La.R.S. 40:1299.36.1 C is an unconstitutional intrusion by the Legislature into the powers and functions of the judiciary in violation of La. Const. Art. II, § 2 (1974). Because a statute was declared unconstitutional, the case is before this court under our appellate jurisdiction. La. Const. Art. V, § 5 (1974).

Justiciability

This case presents issues as to the availability and scope of judicial proceedings which seek, on behalf of an incompetent person, to remove life support systems from the incompetent person’s body.

Courts in other jurisdictions have considered whether there is a right to a judicial approval of discontinuation of life support systems by the parents or guardian of a terminally ill or profoundly comatose patient, in the absence of a procedure expressly authorized by the Legislature. In Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), the court recognized that the right of a comatose patient to discontinue extraordinary medical procedures should not be disregarded simply because the patient cannot assert it. Concluding that the right may be asserted by the family or a guardian on the patient’s behalf, the court declared that the life support system could be withdrawn, without any civil or criminal liability on the part of anyone involved in the decision, when the guardian and family of the patient concurred in the decision and the attending physicians, after consultation with an ethics committee or similar body at the hospital, concluded that there is no reasonable medical possibility that the patient will emerge from the comatose state. The court emphasized that rendition of the declaratory judgment did not imply that a judicial procedure for declaratory relief is necessarily required for the implementation of comparable decisions in the field of medical practice.

The Quinlan decision was based on the incompetent person’s right to privacy, as asserted by an authorized person exercising judgment for and in the interest of the incompetent person. Acknowledging the competing state interest in the preservation of life, the court concluded that the combination of the extremely poor prognosis and the extremely great bodily invasion vindicated the choice that the incompetent person could reasonably be presumed to have made if she were competent to do so.

The court emphasized that the life support system performed only a maintenance function and did not cure or improve the underlying condition, which all medical officers agreed was permanent and irreversible with no realistic possibility of the patient’s returning to any semblance of cognitive or sapient life. Because a person in such condition could not be kept alive against her will (if she had been competent to decide on the removal), the court permitted a decision for removal based on the substituted judgment of the parent or guardian, and the court approved the decision after the underlying facts had been proved in the judicial proceeding.

Significantly, the court also gave tentative declaratory relief (contingent upon the determination on remand that the underlying facts had not changed) from any civil or criminal liability on the part of any parent, guardian, physician, hospital or other participant. The court reasoned that death resulting from the termination of treatment pursuant to the exercise of the right of privacy, within the factual limitation of that case, was not unlawful, even if the death were regarded as homicide.

In Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980), the court recognized that the right to privacy, even in absence of legislation, gives rise to the right of a guardian to apply to the court for authority to have a life support system withdrawn from a comatose patient.

After discussing whether courts should act at all in such a situation and expressing a preference for legislative action (which had not occurred and might not ever happen), the court concluded that the immediate circumstances, as well as the best interest of the patient, the family, the physicians and the entire community, demanded a solution having the sanction of law. The court further concluded that the right of a terminally ill and comatose person to refuse extraordinary means for prolonging life should be accorded equally to competent and incompetent persons, so that the judiciary (in the absence of legislation) must provide the incompetent person with a method by which that right might be exercised.

Finally, the court established a procedure by which any future applicants were to be governed, declaring that the “neutral presence of the law is necessary to weigh ... [relevant] factors, and thus, judicial intervention is required before any life support system can be withdrawn”. 426 N.Y.S. at 550. The court stated:

“Accordingly, we hold that the following procedure shall be applicable to the proposed withdrawal of extraordinary life-sustaining measures from the terminally ill and comatose patient. The physicians attending the patient must first certify that he is terminally ill and in an irreversible, permanent or chronic vegetative coma, and that the prospects of his regaining cognitive brain function are extremely remote. Thereafter, the person to whom such certification is made, whether a member of the patient’s family, someone having a close personal relationship with him, or an official of the hospital itself, may present the prognosis to an appropriate hospital committee. If the hospital has a standing committee for such purposes, composed of at least three physicians, then that committee shall either confirm or reject the prognosis. If the hospital has no such standing committee, then, upon the petition of the person seeking relief, the hospital’s chief administrative officer shall appoint such a committee consisting of no fewer than three physicians with specialties relevant to the patient’s case. Confirmation of the prognosis shall be by a majority of the members of the committee, although lack of unanimity may later be considered by the court.
“Upon confirmation of the prognosis, the person who secured it may commence a proceeding pursuant to article 78 of the Mental Hygiene Law for appointment as the Committee of the incompetent, and for permission to have the life-sustaining measures withdrawn. The Attorney General and the appropriate District Attorney shall be given notice of the proceeding and, if they deem it necessary, shall be afforded an opportunity to have examinations conducted by physicians of their own choosing. Additionally, a guardian ad litem shall be appointed to assure that the interests of the patient are indeed protected by a neutral and detached party wholly free of self-interest.” 426 N.Y.S. at 550.

In Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), the court acknowledged the growing number of jurisdictions that recognize a right, cognizable in judicial proceedings, to terminate life support systems. Weighing the state’s interest in the preservation of life against the individual’s constitutional right of privacy, the court concluded that there is a right to judicial relief:

“[Tjhere is something approaching consensus in support of some of the principles elaborated in the [Superintendent of Belchertown State School v. Saikewicz, Mass.Sup.Jud.Ct., 373 Mass. 728, 370 N.E.2d 417 (1977) ] opinion. A person has a strong interest in being free from non-consensual invasion of his bodily integrity and a constitutional right of privacy that may be asserted to prevent unwanted infringements of bodily integrity. Thus a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against counterveiling State interests, particularly the State interest in the preservation of life. In striking that balance account is to be taken of the prognosis and of the magnitude of the proposed invasion. The same right is also extended to an incompetent person, to be exercised through a ‘substituted judgment’ on his behalf. The decision should be that which would be made by the incompetent person, if he were competent, taking into account his actual interests and preferences and also his present and future incompetency.” 405 N.E.2d at 119.

In discussing the more controversial issue of the procedure to be used in such cases, the court disapproved “shifting of the ultimate decision-making responsibility away from the duly established courts of proper jurisdiction”. The court, although expressly refusing to establish a requirement of prior judicial approval, specifically approved of the guardian’s action in seeking explicit judicial approval for the proposed course of treatment in that case, since the governing law and its application to the situation were in serious doubt. The court further noted that private medical decisions in any area of practice must be made responsibly and are subject to judicial review, if good faith or due care is brought into question.

In Louisiana, the Legislature has not yet established a procedure for parents, tutors or curators of an incompetent person to withdraw life support systems when the person has entered a permanent and irreversible comatose condition. However, the Legislature in Act 339 of 1982 has at least indirectly recognized the incompetent person’s right to have such systems terminated.

Title 40 of the Revised Statutes pertains to Public Health and Safety. Sections 1299.36.1 through 1299.36.3, enacted by Act 339 of 1982 and effective on September 10, 1982, comprise Part XIX of Chapter 5, which is entitled Miscellaneous Health Provisions.

The purpose of Act 339 of 1982 (according to its title) was to provide with respect to nutritional and medical deprivation of an infant with the intent to cause or allow death, to provide for procedures when parental consent for necessary care and treatment is refused, and to provide with respect to judicial proceedings to enforce the provisions of the act.

Subsection A of Section 1299.36.1 prohibits denial or deprivation of food, water or oxygen to an infant with the intent to cause or allow death for any reason. Subsection B likewise prohibits the denial or deprivation of medical or surgical care necessary to attempt to save the life of an infant child, even when the quality of the child’s life will be deficient (apparently because of physical or mental disability) if the child lives.

Subsection C, quoted in footnote 1, provides an exception to the general rule stated in Subsections A & B. The exception excludes operation of the prohibitory rules when the child’s parents and physicians discontinue use of life support systems and other medical treatment of a child in a profound comatose condition if there is no reasonable medical possibility of recovery.

In the present case the juvenile court concluded that while Subsection C gives the parent the right to make a decision, based on competent medical judgment, to .discontinue treatment or support systems, there is no prohibition or mandate in Subsection C for the court to enforce under the authority of Section 1299.36.3 A. We conclude that the juvenile court erred in this respect.

The Legislature, in enacting the pertinent statute, recognized the right of a permanently comatose child to have his parents and physicians discontinue artificially sustained life under certain conditions. Indeed, the fact that the Legislature set forth in detail the specific conditions under which the right may be exercised reinforces our conclusion that the Legislature intended to recognize the child’s independent right.

Once it has been determined that the child’s right exists in this state, it would be unreasonable to deny the parents and physicians, who are justifiably concerned about the responsibilities arising from the exercise of this awesome right on behalf of the child, the opportunity for a judicial determination that the conditions outlined in the statute do exist as a matter of fact. The parents and physicians should not be required to act at their peril and then to be subject to the legal consequences if a court were to determine subsequently that the conditions necessary to warrant their action did not in fact exist.

We therefore conclude that a permanently comatose child has an independent right to discontinuance of artificially sustained life through the mechanical invasion of the child’s body and that an appropriate representative may judicially assert that right on behalf of the child, either after the event in civil or criminal proceedings or before the event in a declaratory judgment action. In a declaratory judgment action, the primary role of the court should be to determine whether the appropriate safeguards have been provided and the necessary underlying conditions have been proved.

In the present ease, the asserted interest of the child and the intended consequence of death is adverse to the state’s interest in preserving life. The child’s interest is protected by the appointment of an attorney, by the appointment of an independent physician, by the joinder of the attorney general and the local district attorney, and by procedural due process which requires proof of the underlying facts by at least clear and convincing evidence.

Inasmuch as the instant action presents an immediate and genuine situation in which the rights of the parties are uncertain, the parties are entitled to a judgment which will remove the uncertainty, and an appropriate court of record acting within its jurisdiction may render a declaratory judgment in this matter.

Jurisdiction

The juvenile judge declined jurisdiction, noting that while Section 1299.36.3 (quoted in footnote 9) confers jurisdiction upon the juvenile court in proceedings “to enforce the provisions of this Part” (referring to Part XIX, as adopted by Act 339 of 1982), there was no mandate or prohibition before the court “to enforce” in the instant proceedings. We conclude that the juvenile judge’s interpretation of the legislative conferring of jurisdiction was too restrictive.

Juvenile courts shall have jurisdiction as provided by law. La. Const. Art. V, § 18 (1974). In adopting Act 339 of 1982, the Legislature arguably intended to vest the juvenile courts with at least concurrent jurisdiction over proceedings arising under Part XIX. Section 1299.36.3 A may reasonably be construed to apply to judicial proceedings pertaining to rights granted or recognized by the Part. Since Part XIX recognizes the right of the permanently comatose child to have his parents and physician discontinue medical treatment or life support systems under specified circumstances, the juvenile court has jurisdiction to adjudicate proceedings involving the exercise of this right.

Moreover, juvenile courts have jurisdiction to adjudicate an action for a declaratory judgment. La.C.J.P. Art. 24(2); La.C.C.P. Art. 1871.

Constitutionality

The juvenile court held that La.R.S. 40:1299.36.1 C is unconstitutional. Reasoning that the statute reflects a legislative intent to relieve the court of capacity to act under the described circumstances and to vest the prerogative in the parents based on competent medical judgment without the need for or right to court authorization, the court concluded that Section 1299.36.1 C is an unconstitutional legislative intrusion into the judicial function.

In an earlier section of this decision, we held that an appropriate court has the power and authority to render a declaratory judgment in this matter. That holding vitiates the juvenile judge’s reasoning that the Legislature precluded the courts from rendering decisions or even finding facts in cases relating to removal of life support systems. We conclude that the juvenile court erred in declaring La.R.S. 40:1299.36.1 C unconstitutional on the basis of this mistaken reasoning.

Finally, we observe that La. Const. Art. I, § 20 provides that “[n]o law shall subject any person to euthanasia...."

Modern medical science has developed procedures and devices which assist, supplement and even replace basic bodily functions. Perhaps as a side effect, there are now methods of prolonging or sustaining life when a person’s vital processes have irreversibly ceased to function spontaneously. In this perspective, we note a vast difference between a person whose quality of life has been significantly decreased by a devastating illness or injury and a person whose comatose body has been significantly (and perhaps unwarrantedly) invaded by machines which cannot cure or improve, but can only artificially prolong an existence that will never be known by the patient. These extraordinary means of preserving a person’s “existence” in an irreversible vegetative coma have little to do with the continuation or the ending of “life”, and removal of such systems under highly restricted circumstances cannot reasonably be construed as violative of the constitutional prohibition against euthanasia. Indeed, the law under review is a warranted exception to the prohibitory rules in Part XIX which were designed to implement the constitutional prohibition against euthanasia when the child is unwanted or the quality of his life will be substantially diminished.

Finally, the same section of the constitution prohibits subjecting any person to torture and. arguably justifies the legislative exception in Part XIX.

Decree

The judgment of the juvenile court is reversed, and the case is remanded to the juvenile court for further proceedings.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

I agree that there is a justiciable controversy over which the juvenile court has jurisdiction. Furthermore, I join in the opinion that the juvenile court erred in declaring Act 339 of 1982 (La.R.S. 40:1299.-36.1) unconstitutional based on the reasons stated in the juvenile court opinion. However, I do not believe the lawmakers by Act 339 of 1982 (La.R.S. 40:1299.36.1) intended to establish in a permanently comatose child the right “to have his parents and physicians discontinue artificially sustained life under certain conditions” or to grant any type of civil or criminal immunity to his parents or physician. Paragraph C of the act merely provides that other provisions of Act 339 shall not be interpreted to prevent a child’s parents and physician from discontinuing a life support system for a child in a continual profound comatose state where, in the opinion of the child’s physician exercising competent medical judgment, the child has no reasonable chance of recovery from the coma. The petitioners in this case have asked only for a declaratory judgment that the child is in a continual profound comatose state and has no reasonable chance of recovery, so as to be governed by paragraph C of the act. I see no necessity for this court in this case to recognize or create a right to die or to immunize anyone from civil or criminal responsibility for the discontinuance of life support systems. I would also reserve judgment on the question of whether Act 339 is a law which subjects any person to euthanasia in violation of Article 1 § 20 of the 1974 Louisiana Constitution, because this issue has not been raised by the parties and was not considered by the juvenile court.

      . La.R.S. 40:1299.36.1 C provides:
      “Nothing in this Section shall be interpreted to prevent a child’s parents and physician from discontinuing the use of life support systems or other medical treatment for a child in a continual profound comatose state where, in the opinion of the child’s physician exercising competent medical judgment, the child has no reasonable chance of recovery from said comatose state despite every appropriate medical treatment to correct such condition.”

      . The juvenile court took this action on the basis of the “traditional role of the State in protecting life”.

      . Arguably, once the juvenile court declined jurisdiction, it had no power and authority to declare the statute unconstitutional or to render any other decree in the case. Nevertheless, this court ultimately has either appellate or supervisory jurisdiction, and we therefore proceed to review all of the grounds on which the juvenile court dismissed the action.

      . Although the facts of the present case have not been determined because of the juvenile court’s pretrial disposition, the affidavit of one of the attending physicians asserted that the child’s profound comatose condition is evidenced by abnormal electroencephalography: failure of head growth; abnormal cranial ultrasound, indicating progressive cerebral atrophy; spastic quadriplegia, including inappropriate response to stimuli; inability to suck and feed except by tube feedings; inability to breathe, necessitating an infant ventilator, heart rate dependent on ventilator therapy; and absence of other appropriate signs of consciousness to indicate spontaneous response to environmental or social stimuli.

      . The incompetent person in Eichner was an 83-year old member of a religious order who had been in a permanent vegetative coma for many months after suffering cardiac arrest during the surgical repair of a hernia. The patient . had previously expressed his desire that life support systems be discontinued if he were ever involved in such a situation.

      . The court also declared that when the procedure is followed, no medical or lay participant shall be subject to criminal or civil liability as a result of the termination of life sustaining measures.

      . The last paragraph of Subsection A emphasizes that “[n]o infant child shall be intentionally killed by any other means by any person for any reason”.

      . Subsection D provides that potentially lifesaving medical and surgical care is not required to be provided when the potential risks to the child’s 'life or health inherent in the treatment outweigh the treatment’s potential benefits for survival.

      . La.R.S. 40:1299.36.3 A, the jurisdictional section of Part XIX, provides:
      “Judicial proceedings to enforce the provisions of this Part may be instituted by any agency, institution, or person interested in the child’s welfare in the juvenile court in the jurisdiction where the child is found. All such proceedings shall be heard in confidence without delay, including the holding of special sessions of court. Any appeal or application for writs in any appellate court in cases arising from this Section shall be heard and decided in the shortest possible time. An attorney shall be appointed to represent the child in all trial and appellate proceedings.”

      .The very purpose of the declaratory judgment procedure is to remove uncertainty in existing (as opposed to hypothetical) situations. While courts should not render advisory opinions, a person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and the declaratory judgment will remove the uncertainty or terminate the dispute. When a declaratory judgment is thus appropriate, neither the existence of another adequate remedy nor the fact that further relief has been or can be claimed will preclude the court from rendering a judgment declaring the petitioner’s rights or status. La.C.C.P. Art. 1871.

      . If the child’s parents and physicians had announced that they were going to discontinue the life support systems and an agency or person interested in the child’s welfare had filed an injunction asserting that the child had a reasonable chance of recovery from the comatose condition, the juvenile court would have jurisdiction over the subject matter under the clear provisions of the statute. The instant proceeding presents essentially the same issue.

      . The judge was justifiably concerned about the right of a juvenile court (or any court) to insulate the child’s parents and physicians from criminal liability arising from removal of life support systems. La.R.S. 40:1299.36.3 B expressly provides that “[n]othing in this Part shall diminish the application of the Louisiana Criminal Code where appropriate”. (Emphasis supplied.)
      Arguably, a court should not rule on a person’s prospective criminal liability for contemplated action. Nevertheless, when the Legislature has excluded a precise situation (sought to be declared as existing in this case) from the prohibition against deprivation of medical treatment, and when the attorney general and district attorneys have been made parties to the particular proceeding, the parents and physicians who honestly and in good faith seeks a judicial declaration in advance of the occurrence substantially decrease the likelihood of subsequent criminal prosecution. Moreover, the Spring decision notes that “no prosecutor has proceeded to trial in a case where a physician chose to terminate life-preserving treatment or omit emergency treatment in a hopeless case. See Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L.Rev. 304, 310-311 (1977).”

      . Euthanasia is defined as the act or practice of painlessly putting to death persons suffering from incurable conditions or diseases. Webster’s Third New International Dictionary (1971).


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Aaron BORDELON.
    No. 82-KA-0389.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Ronald G. Coleman, Ruston, Law Offices of Walton J. Barnes, Baton Rouge, for applicant.
    A.S. Easterly, III, Taylor, Poeter, Brooks & Phillips, Stephen H. Vogt, Durrett, Hardin, Hunter, Dameron & Fritchie, John W. Perry, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Max Labranche, La-branche & LeJeune, Baton Rouge, for respondents.
   CALOGERO, Justice.

Defendant Aaron Bordelon was charged by bill of information with distribution of a Schedule II controlled dangerous substance, marijuana, in violation of La.R.S. 40:967. After pleading guilty as charged, he was thereafter sentenced to five years at hard labor. He now appeals on the basis of three assignments of error consolidated into one argument, principally contending that the five year sentence imposed by the district court was inadequately reasoned and unconstitutionally excessive.

We find that defendant’s assignments of error are not meritorious. We therefore affirm defendant’s conviction and sentence.

The three assignments of error present no reversible error. Nor do they involve legal issues not governed by clearly established principles of law. Therefore, they will be treated in an unpublished appendix which will comprise part of the record in the case.

Decree

Accordingly defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Laurence SOLOW.
    No. 82-K-2444.
    Supreme Court of Louisiana.
    Nov. 12, 1982.
   In re Laurence Solow, applying for remedial writ, Criminal District Court. Parish of Orleans. Fourth Circuit, Court of Appeal, 422 So.2d 1173.

Denied.

DENNIS, J., would grant the writ.


text:
    James Richard DALY v. L.E. MYERS CONSTRUCTION CO.
    No. 82-C-2602.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
   In re L.E. Myers Construction Co., applying for writs of certiorari and review, to the Court of Appeal, Second Circuit. Parish of Bossier City, Twenty-sixth Judicial District Court, No. 53267.

Denied. The Court of Appeal decree limits maximum benefits to 450 weeks. See Jacks v. Banister Pipelines America, et al., 418 So.2d 524 (La.1982).


text:
    STATE of Louisiana v. Freddie A. HINES.
    No. 82-KK-2841.
    Supreme Court of Louisiana.
    Dec. 7, 1982.
   In re Freddie A. Hines, applying for supervisory writs and stay order Criminal District Court. Parish of Orleans. No. K-0735.

Denied.


text:
    STATE of Louisiana v. Elbert A. COBB.
    No. 82-KP-2891.
    Supreme Court of Louisiana.
    Dec. 20, 1982.
   In re Elbert A. Cobb, applying for remedial writs. Parish of Jefferson. Twenty-fourth Judicial District Court. No. 79-1870.

Granted. Out of time appeal granted. Defendant is ordered released on same $15,-000 bond pending appeal to this Court.


text:
    STATE of Louisiana ex rel. Russell J. GATLIN v. CLERK OF COURT ORLEANS PARISH CRIMINAL COURT HOUSE.
    No. 81-KH-2019.
    Supreme Court of Louisiana.
    Dec. 20, 1982.
   In re Russell J. Gatlin, applying for writ of certiorari. Parish of Orleans. No. 276-050.

Denied. Moot.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC., v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 82-C-2889.
    Supreme Court of Louisiana.
    Dec. 20, 1982.
    Reconsideration Denied Dec. 23, 1982.
   In re Central Louisiana Electric Company, Inc., applying for supervisory writs of certiorari, prohibition or mandamus, from the Louisiana Public Service Commission. Docket Number U-15180, to the Nineteenth Judicial District Court. Parish of East Baton Rouge. No. 260-912, Division “J”.

Writ granted. The ruling of the district court is reversed. Discovery is applicable in spite of language referring to this review in the district court as an appeal. The case is remanded to the district court to consider the discovery requests and the objections thereto.


text:
    Leon C. CLARK v. Cathy Hutchins CLARK.
    No. 82-C-2913.
    Supreme Court of Louisiana.
    Dec. 20, 1982.
   In re Leon C. Clark, applying for supervisory writs of certiorari, prohibition, mandamus and a stay order to the Family Court. Parish of East Baton Rouge. No. 52126, from the First Circuit Court of Appeal. No. 82-CW-1075.

Denied.


text:
    Jacqueline Snell TAYLOR, et al. v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, INCORPORATED, et al.
    No. 82-C-2935.
    Supreme Court of Louisiana.
    Dec. 21, 1982.
   In re Romas J. Snell, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. Civil District Court, No. 76-15929. Fourth Circuit, Court of Appeal. No. C-0428.

Granted. Rulings of the courts below reversed. Intervention permitted.


text:
    STATE of Louisiana v. Robert E. THOMAS.
    No. 82-KK-2944.
    Supreme Court of Louisiana.
    Dec. 23, 1982.
   In re Robert E. Thomas, applying for writ of certiorari, to the Third Circuit, Court of Appeal. Sixteenth Judicial District Court. Parish of Iberia. No. 34693.

Writ granted. Bond reduced to $200,000.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 82-C-2967.
    Supreme Court of Louisiana.
    Dec. 30, 1982.
   In re Central Louisiana Electric Company, applying for supervisory writs of certiorari, prohibition, or mandamus and remedial writs. Nineteenth Judicial District Court. Parish of East Baton Rouge. Louisiana Public Service Commission. No. 260912.

Denied.


author:
FORET, Judge.
      CULPEPPER, J., STOKER, Judge, STOKER, Judge. DOMENGEAUX, Judge, FORET, Judge,

text:
    George A. GWATNEY, Plaintiff-Appellee, v. CITY OF LAFAYETTE, Louisiana, Defendant-Appellant.
    No. 82-127.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Rehearing Granted Oct. 11, 1982.
    On Rehearing Dec. 22, 1982.
    Writ Denied Feb. 23, 1983.
    Voorhies & Labbe, Richard D. Chappuis, Jr., Lafayette, for defendant-appellant.

      Michael Harson, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

George A. Gwatney (plaintiff) brought this action seeking judicial review of a decision by the Lafayette Municipal Civil Service Board (the Board) upholding certain actions taken by the defendant, City of Lafayette, which resulted in the abolishment of plaintiff’s position as defendant’s Environmental Services Manager.

The trial court, after hearing plaintiff’s appeal, rendered judgment in favor of plaintiff ordering defendant to reinstate plaintiff to his former position with back pay from the time of his discharge therefrom on December 31, 1980, and for all fringe benefits and other benefits appertaining to his employment with defendant, which he would have received during this same period of time.

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

Whether the trial court committed manifest error:
(1) in failing to sustain defendant’s exception of lack of jurisdiction and alternative exceptions of no right and cause of action;
(2) in finding that the abolishment of plaintiff’s position was improper because plaintiff was laid off for reasons not permitted under the Lafayette Civil Service Code (the Code); and
(3)in finding that defendant had failed to follow the proper procedure under the code for abolishing plaintiff’s position.

FACTS

Plaintiff was first employed by defendant on December 6, 1976, in the position of Personnel Section Supervisor. He served in that position for two years, and was then promoted to Assistant Administrative Services Manager. In June of 1980, plaintiff was approached by certain of defendant’s high-level employees and was asked to assume a new position that was being created to be known as the Environmental Services Manager. He was told that defendant was having problems operating the new N. Du-gas Landfill and that one of his duties would be to oversee the operation of that facility. At the time, it was contemplated that plaintiff would perform these duties until defendant entered into a contract with a firm named Waste Management, Inc., for the operation of the landfill. Plaintiff would then have as one of his duties the responsibility of making sure that Waste Management, Inc. complied with the terms of its contract with defendant.

However, negotiations with Waste Management, Inc. fell through in early December of 1980, and defendant decided that it would attempt to operate the landfill on its own. A new position of Landfill Supervisor was then created, and the requirements for holding that position included five years experience with the operation of heavy equipment for excavating, etc. Plaintiff did not have the background to meet these requirements. He was informed around the middle of December of 1980, that the position of Environmental Services Manager was to be abolished effective December 31, 1980. Plaintiff was told that he could attempt to write up a job description to justify the creation of a new position, similar to the one he now held, except that his duties would no longer include the operation of the landfill. Plaintiff did this but was then told that such a position could not be justified as other employees could perform the remaining duties of the Environmental Services Manager. Plaintiff was offered another position with defendant, but would have taken a substantial cut in pay had he accepted it. Plaintiff refused to take the position offered and appealed the abolishment of his position to the Board.

An investigation was held by the Board, which ultimately decided that defendant had acted in good faith in abolishing plaintiff’s position. Plaintiff then appealed from the decision of the Board to the trial court. His appeal was based on three grounds. First, that the Board had erred in finding that defendant had acted in good faith in abolishing his position. Second, that defendant had acted without proper cause, as set forth in the code, and by Act 288 of 1958, in abolishing his position. Third, that the abolishment of his position was not accomplished according to the procedure set forth in the code for undertaking such action. Defendant filed a declinatory exception of lack of jurisdiction, and peremptory exceptions of no right of action and no cause of action. There is no indication in the record that the trial court made any ruling on defendant’s exceptions, but obviously it rejected them.

DEFENDANT’S EXCEPTIONS

In essence, defendant argues that under the provisions of the code, plaintiff has no right to appeal to the trial court from the decision of the Board upholding the action taken by it in abolishing his position. We find no merit to this argument. Defendant cites certain provisions of the code in its brief filed in this Court, but none of these support the position it has taken. To the contrary, these provisions clearly give plaintiff the right to appeal from the decision of the Board. Section 121(B) of Subpart B of the Lafayette Code (Act No. 288 of 1958, Sec. 21), provides, in pertinent part:

“(B) Any employee under Classified Service and any appointing authority shall have the right to appeal from any decision of the Board, or from any action taken by the Board under the provisions of the Act and which is prejudicial to said employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the Board is domiciled .... ”

ABOLISHMENT OF PLAINTIFF’S POSITION FOR UNJUSTIFIED AND IMPROPER CAUSES

Defendant contends that the trial court, in reviewing actions taken by the Board, is limited to making a determination of whether the decision made by the Board was or was not made for just cause under the code. It argues that the trial court ignored this limitation in finding that plaintiff had been denied due process as provided for in the code. We disagree.

The trial court noted the following regarding this issue in its written reasons for judgment:

“(1) Improper Abolishment
As Petitioner correctly points out, the pivoting (sic) issue of this allegation is the meaning of ‘abolishment’, whether it is within the context of ‘abolishment of class’ or ‘abolishment of position’. In either situation, there are formal requirements and procedures which must be honored by the hiring authority.
According to the Lafayette Civil Service Code, the Petitioner was subject to the rules and regulations of the Civil Service Code, as he held a position of ‘Classified Service’. (Section 106 of Code) In this particular instance, this Court feels there was clearly an ‘abolishment of a position’, i.e., the position of Environmental Services Manager, as well as an ‘abolishment of class’, because the classification had been eradicated via an assumption of such duties by the Landfill Supervisor. In essence, Mr. Gwatney has been the victim of a ‘lay-off’ (Section 3, Rule 9 of the Civil Service Rules and Regulations), which is defined as ‘the removal of an employee, in accordance with the provisions of Act 288 of 1958, because of lack of work, failure of financial appropriation, or other causes which do not reflect on the employee’. This definition is very pertinent. Mr. Gwat-ney has clearly been laid off for a reason that does not satisfy the requisite conditions for a person being laid off. That is, he was laid off because he did not have five (5) years experience in operating a landfill. As this Court interprets the regulations, a dismissal such as this is a reflection on the employee’s abilities. Therefore, this is not a permissible reason for a lay-off, particularly because the City knew or should have known of Gwatney’s qualifications, or lack of qualifications, prior to his appointment. This Court finds that Mr. Gwatney was ‘laid off’ in such a manner so as to deprive him of due process in accordance with the Civil Service Rules and Regulations.”

There was evidence in the record to support the trial court’s finding that plaintiff had been laid off by defendant. Defendant concedes this in its brief filed in this Court. The evidence also supports the trial court’s finding that plaintiff was laid off for reasons which reflect on his abilities to perform his former job with defendant. As the trial court noted, the code and the act provide that lay-offs shall be for reasons which do not reflect on the employee. In effect, the decision of the Board upholding the action taken by defendant in laying off plaintiff supports an action taken in violation of the code and the act. For this reason, we find the Board’s decision to have been made without just cause.

CLASS OR POSITION?

Defendant contends that the trial court committed manifest error in finding that it had failed to follow the provisions of the code regarding the abolishment of a class. It argues that the class in which plaintiff’s position was placed was not abolished at the time his position was abolished. Thus, those provisions of the code requiring the Board to ratify actions taken by defendant to abolish a class are inapplicable here.

The trial court stated the following in its written reasons for judgment concerning this issue:

“(2) Improper Procedure
In any event, this Court feels that the City did not follow the proper procedure. This Court agrees with Petitioner, and believes that the case of Odom v. City of Minden, 300 So.2d 462, is squarely on point. As a classification was abolished, Mr. Gwatney was entitled to the procedures as enumerated in Section One of Rule Three of the Civil Service Rules and Regulations. That section states:
‘Whenever, in the opinion of the director, there is necessity for establishing a new class or abolishing an existing class in the classification plan, he (director of personnel) may anticipate formal action of the Board by adding the new class or revising or abolishing an existing class. Such action shall be subject to ratification by the Board at its next regular meeting.’
The voluminous record reflects that this procedure simply was not followed.”

The evidence shows that plaintiff’s position was the only one in the class in which it was placed. The evidence also shows that the class was adopted by the Board for the specific purpose of allowing defendant to create plaintiff’s position. However, that position has now been abolished, but defendant argues that the class still exists. Odom v. City of Minden, 300 So.2d 462 (La.1974), involved a situation with facts and circumstances similar to this.

Odom concerned the establishment of the classification of “Fire Inspector” by the defendant thereto. Only one position was assigned to that classification, and plaintiff, in Odom, was appointed to fill that position. Some four years later, defendant’s City Council voted to abolish the position held by plaintiff. However, it failed to follow the procedures prescribed by Article XIV, § 15.1 of the 1921 Constitution of this State for abolishing a classification. Odom noted that, “... the threshold issue that we must resolve is whether the City’s action resulted in the abolition of a position or of a classification.” Odom then reviewed the pertinent provisions of the 1921 Constitution and held that the City had abolished a classification rather than a position. As the City had failed to follow the provisions for abolishing a classification, Odom ordered it to reinstate plaintiff.

Article XIV, § 15.1(3)(e) of the 1921 Constitution defined a class as follows:

“e. ‘Class’ or ‘class of position’ means a definitely recognized kind of employment in the classified service, designated to embrace positions that are so nearly alike in the essential character of their duties, responsibilities, and consequent qualification requirements, that they can fairly and equitably be treated alike under like conditions for all personnel purposes.”

Rule I of the “RULES AND REGULATIONS OF MUNICIPAL GOVERNMENT EMPLOYEES CIVIL SERVICE BOARD, CITY OF LAFAYETTE, LAFAYETTE, LOUISIANA” provides the definitions of terms used throughout that document. Section 10 of Rule I’s definitions of “Class” or “Class of Position” are verbatim to the definitions found in the 1921 Constitution for those same terms. Further, the definition of the term “Position” is virtually identical in both the 1921 Constitution and the above mentioned rules and regulations.

Odom said, at page 464, that:

“From these definitions and a reading of the related paragraphs of Art. XIV, § 15.1, it can be seen that the Constitution clearly envisions classes of positions or jobs; each class can be composed of any number of positions, or of only one, as in the case before us. One position within a classification could be abolished without leaving that classification of duties unmanned regarding the public’s protection; abolition of an entire classification, however, also abolishes an entire category of services to the public. Clearly, a class cannot exist if no one is employed in any job within it and there is no intention that anyone be employed therefor. To permit a class to exist under such circumstances would be tantamount to granting to the appointing authority the power to alter the classification plan, in direct contravention of the clear wording of La. Const. Art. XIV.” (emphasis ours)

Odom, noting that defendant’s City Council had decided that the duties of a full-time “Fire Inspector” were insufficient to justify the continued expense of maintaining an employee in that position, found that the substance of the City Council’s action in discharging plaintiff was to eliminate that classification entirely.

In the case sub judice, there was testimony to the effect that plaintiff’s position was being abolished because there was no longer enough work available to justify the continued existence of the position of Environmental Services Manager. There was certainly no thought being given to the idea of hiring anyone else to fill that position. It is our opinion that, as in Odom, the substance of the action taken here by defendant was that a classification, rather than a position, was being abolished. Thus, defendant had to follow the provisions of the code for the abolishment of a class, which the evidence shows that it failed to do. This provides another basis for our finding that the Board’s decision upholding the action taken by defendant was made without just cause.

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

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

AFFIRMED.

CULPEPPER, J.,

concurs, being of the view that the majority opinion by the Supreme Court in Odom is controlling in the present case, although disagreeing with Odom.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the majority opinion solely because the facts are virtually the same as those of Odom v. City of Minden, 300 So.2d 462 (La.1974) and therefore the pronouncement of the majority decision of the Louisiana Supreme Court in that case must be adhered to. Otherwise, I should think that the position of the defendant is the correct one.

Before CULPEPPER, DOMENGEAUX, FORET, STOKER and YELYERTON, JJ.

ON REHEARING

STOKER, Judge.

The City of Lafayette filed an application for what amounted to a limited rehearing. In its application the defendant City stated that the application was in the alternative “assuming that the decision of the Louisiana Supreme Court in Odom v. City of Minden, 300 So.2d 462 (La.1974) is applicable as held by this Honorable Court in its decision herein.” We granted a limited rehearing. After the granting of the rehearing, Judges Culpepper and Stoker concluded that a partial reversal of the trial court’s judgment was in order. Inasmuch as Judge Foret disagreed, Judge Domen-geaux and Judge Yelverton were added to the panel to comply with Article 5, Section 8(B) of the Louisiana Constitution of 1974.

The application for rehearing asked that our original opinion affirming the trial court judgment be reversed insofar as it ordered that Gwatney be reinstated. Defendant asked further that the case be remanded for a determination of the benefits owed Gwatney from the date of his discharge through the date that the abolition of his former position was ratified by the Board subject to a credit to the City of Lafayette for any sums paid to Gwatney through unemployment benefits or salary income.

As set forth in our original opinion in this case the trial court grounded its decision and judgment on two separate grounds: (1) that plaintiff’s discharge amounted to a “lay-off” which reflected on plaintiff’s ability to perform his job in his former position of Environmental Services Manager, .a thing the trial court held the City of Lafayette could not do, and (2) the position held by plaintiff could not be abolished (as he was the sole person who held the position) without ratifying action of the civil service board for the City of Lafayette.

Our original opinion on appeal affirmed the trial court on both grounds. Two members of the panel concurred on the basis of the second reason stated above, but with reluctance, and only because the plurality decision of the Louisiana Supreme Court in Odom v. City of Minden, supra, appeared to dictate this result. In order to better understand our disposition of this case on rehearing it is necessary for the position of the two concurring members of this panel, Judges Culpepper and Stoker, to be more fully stated. While entertaining the utmost respect for the views of the able trial court and our esteemed brother who authored the opinion on original hearing herein, the two concurring judges do not agree with the first ground stated by the trial court. In short, if prior to the time this case came to trial the civil service board had ratified the abolition of the position of Environmental Services Manager which resulted in plaintiff’s loss of employment with the City, the concurring members of this panel would have voted to reverse the trial court. Had such been the case the requirements of Odom would have been satisfied.

The net effect of the situation stated above is that all the judges sitting on the panel which heard this case on original hearings agreed as to the results, the af-firmance of the trial court. However, as stated there was majority agreement only on the basis of Odom. In the City’s application for rehearing the City suggested that subsequent to the signing of the trial court’s judgment, the civil service board did act to ratify the abolition of plaintiff’s position of Environmental Services Manager. In fact, the action was mentioned by the City in its brief on original hearing in connection with an alternative contention. However, as the trial record was made up prior to this alleged action of the civil service board, such action was not a part of the record. Such action, if it took place, is still not a part of the record. Although counsel for the City has attached to his brief on rehearing a copy of what purports to be the minutes of the civil service board for January 20, 1982, setting forth a ratification effective as of that date, we cannot take cognizance of it. The case is not in the posture which would require that we go ahead and decide the issues raised in the application for rehearing under the pronouncement in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

All three members of the panel voted to grant a limited rehearing. Two members of the panel, believed that the case should be remanded for further evidentiary proceedings in order that final disposition of the controversy may be made. It will be noted that the trial court’s ruling and judgment was made conditional upon the happening of an event which may have transpired since the granting of the judgment. The granting of the reinstatement with' back pay and other benefits was made conditional “until such time he (plaintiff) may be properly and formally terminated from his employment.” The pertinent portions of the trial court’s judgment are set forth in footnote one below.

Since the granting of the limited rehearing and the filing with us for the briefs on rehearing, the author of the opinion on original hearing has concluded that we should adhere to our original judgment and let the affirmance stand. The other two members of the panel disagreed and concluded that the case should be remanded. The two judges added to the panel agree or concur in these conclusions.

While the question of termination to be considered on remand might conceivably be brought up in the trial court — on a rule to show cause, for example — for the purposes of convenience, justice to the parties and judicial economy, we deem a remand appropriate under the circumstances. See DeFelice v. Garon, 395 So.2d 658 (La.1981) and Heymann v. Lewis, 414 So.2d 787 (La.App. 3rd Cir.1979).

ISSUES ON REHEARING

The rehearing was granted “limited to the question of whether we should remand this case to the trial court for a determination of the benefits owed George Gwatney from the date of his discharge to the date of ratification by the Board of the abolishment of the classification of Environmental Services Manager and if so whether we should reverse that portion of the judgment previously rendered herein reinstating George Gwatney to his former position.”

On rehearing we conclude that the remand should be ordered and that the trial court should decide on remand (through an evidentiary hearing) the question of whether the alleged action of the civil service commission met the conditions laid down in the trial court judgment.

The commission purportedly took the following action at its meeting on January 20, 1982:

“1. It was moved by Brooke Hamilton and seconded by Bill Peyton to ratify the abolishment of the class of Environmental Services Manager as executed by the Director of Personnel, but to change the effective date to January 20,1982. Said class abol-ishment was made to comply with Judge Fontenot’s procedural requirement in her court ruling where a 1-position class was abolished as in George Gwatney’s case.”

On remand the City will have the burden of proof to establish that the commission took this action. It will be up to the trial court to determine factually if the action was taken and the effect to be given it. It will be noted that the commission made its ratification effective on the date of the motion of ratification, January 20, 1982. Plaintiff was discharged December 31,1980.

In the brief filed on rehearing on behalf of plaintiff, his counsel takes the position that there was nothing for the civil service commission to ratify because plaintiff was never validly discharged initially. Plaintiff urges his original position that he was illegally discharged because he was released for reasons that reflected on his ability to perform his former job, that of Environmental Services Manager. We now reject plaintiff’s reasoning despite the fact that it was adopted by the able trial court and our esteemed colleague of this panel. The judges who concurred on original hearing had no reason to comment on that question, considering the posture of the case as it then stood, and the fact that they filed separate concurrences based solely on Odom v. City of Minden, supra. While we are bound to follow the Odom case, inasmuch as it is a decision of the Supreme Court, our remand is consistent with that decision.

The fact that the new City position created, Landfill Supervisor, required five years experience, which plaintiff did not have, has absolutely nothing to do with the abolition of the former position of Environmental Services Manager. The only significant thing about the two positions is that establishment of the new position rendered the former position unnecessary. The fact that plaintiff could not qualify for the new position has nothing whatsoever to do with the validity of the abolition of the position held by him. With respect to the new position plaintiff was an aspirant who was not qualified. This fact did not in any way reflect on plaintiff’s ability to perform his job as Environmental Services Manager. The abolition of his former position which had become superfluous in the City’s organizational and management structure did not cast any reflection on plaintiff’s ability or qualifications to the abolished job. The two things should not be confused. They are separate actions and not part and parcel of one action.

Even if the two actions of the City could be said to have had some connexity of the nature urged by plaintiff, we doubt that establishing experience standards for the new position could be said to reflect on plaintiff’s ability to perform his former job.

For the foregoing reasons the trial court on remand is to consider only the fact and effect of the board action of January 20, 1982. In this regard substantial questions may emerge as to whether such action constituted ratification as contemplated by the Lafayette civil service regulations. On such matters we make no comment other than to specify that the trial court is free to consider all questions relating to the fact, effect and validity of the alleged ratification.

The principal matter which will be before the trial court on remand will be the question of termination. If this issue is determined in the City’s favor, the trial court may definitively determine exactly the emoluments and monetary benefits to which plaintiff is entitled. The City of Lafayette has urged that on remand the trial court’s fixing of the amount of back pay and benefits should be “less all monies paid to or received by him in the form of unemployment benefits or any other salaries and wages earned by him in private employment during the period of time beginning with the date of his discharge until the date of the ratification by the Board.” This question is premature. For any such credits as the City may be entitled, the trial court may receive evidence pertinent and legally relevant to the issue and grant any relief authorized in law.

We come now to the second matter for which we granted a limited rehearing. This is the question of whether we should reverse that portion of the trial court’s judgment which ordered reinstatement (granted were the words of the trial court’s judgment). It is possible that the trial court meant to provide for reinstatement only from the date of its judgment but with back pay and other benefits to be retroactive. In Odom v. City of Minden, supra, the Supreme Court ordered a remand to the trial court “with instructions that Odom be reinstated to his former position ... with full benefits retroactive to the date of his discharge, including but not limited to full pay and seniority rights.” As we view the Odom case, it did not order a “retroactive reinstatement.” Perhaps such was immaterial inasmuch as Odom was granted all his significant rights.

Inasmuch as we remand this case for a determination of the question of termination in fact and any related questions, we now reverse that portion of the trial court’s judgment which provided for reinstatement of the plaintiff. If the trial court should find on remand that George A. Gwatney was properly terminated from employment with the City on January 20, 1982, then the question of reinstatement will be moot. The trial court’s judgment on remand can protect Gwatney in a similar manner as was ordered done in Odom, that of awarding back pay and all appropriate benefits retroactive to the date of his discharge by the City without any necessity of dealing with the question of reinstatement.

If, on the other hand, the trial court should find that the alleged termination did not occur, the trial court may again order reinstatement. Under such circumstances there would be no necessity for making the reinstatement retroactive because the Odom procedure could be followed’. Plaintiff’s rights could be fully protected by prospective reinstatement and a judgment for back pay and benefits retroactive to his termination by the City.

For the foregoing reasons we reverse that portion of our original judgment which affirmed the trial court’s judgment ordering reinstatement of the plaintiff to the position Environmental Services Manager formerly held by him. In all other respects we reaffirm the judgment of the trial court but solely on the basis of Odom v. City of Minden, supra. We now order that this case be remanded to the trial court for an evidentiary hearing and further proceedings consistent herewith.

ON REHEARING, REVERSED IN PART, REAFFIRMED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

DOMENGEAUX, J., concurs and assigns written reasons.

FORET, J., dissents and will assign written reasons.

DOMENGEAUX, Judge,

concurs in the remand.

The exigencies of this case, and particularly the alleged subsequent action of the Civil Service Commission referred to in the majority opinion on rehearing, leaves us no clear alternative but to remand. Otherwise, plaintiff’s situation would be left hanging in an ambiguous state. The instructions to the trial court on remand are specific and clear and designed to fully protect the rights of all parties under the circumstances. To allow our original opinion to stand would obviously result in another law suit or suits meant to accomplish what our remand is designed to do now without undue delay and with judicial economy.

FORET, Judge,

dissenting.

I respectfully, but vigorously dissent from the decision of the majority in this rehearing. I adhere to the views expressed in our original opinion.

It seems to me that the majority opinion on rehearing is in contradiction of the Louisiana Supreme Court’s holding in the case of Odom v. City of Minden, 300 So.2d 462 (La.1974).

      . Defendant also raises an issue concerning the fact that the trial court’s hearing on this matter was held without defendant’s counsel being present. We find no merit to this issue. Defendant’s counsel sought a continuance from the original date on which the hearing was to be held. The continuance was granted and he informed opposing counsel that he would be able to attend the hearing, if it were scheduled later that same week. However, he then left town and the trial court’s law clerk was unable to reach him to inform him that the hearing had been rescheduled in accordance with his wishes. The trial court heard approximately six minutes of oral argument from plaintiffs counsel, together with testimony from its law clerk concerning her efforts to contact defendant’s counsel to inform him of the date and time on which the hearing had been rescheduled, and that is all the hearing consisted of. Defendant’s counsel was given a chance to submit a brief to the trial court before it rendered judgment. We find that defendant was in no way prejudiced by the absence of its counsel from the hearing.

      . Article XIV, § 15.1 of the 1921 Constitution specifically made itself applicable “... to any municipality which operates a regularly paid fire and police department and which has a population of not less than thirteen thousand nor more than two hundred fifty thousand ...".

      . The following are the pertinent dispositive portions of the trial court’s judgment which was signed on January 18, 1982.
      “IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Plaintiff, GEORGE A. GWAT-NEY, and against the Defendant, CITY OF LAFAYETTE, LOUISIANA, granting to said Plaintiff a reinstatement of his employment with the CITY OF LAFAYETTE, LOUISIANA, including back pay from the time of his discharge on December 31, 1980 until such time as he may be properly and formally terminated from his employment with the CITY OF LAFAYETTE, LOUISIANA.
      “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said Petitioner be compensated for all fringe benefits and other benefits appertaining to his employment with the CITY OF LAFAYETTE, LOUISIANA, from the time of his discharge until such time as he may be properly and formally relieved of his said duties with the CITY OF LAFAYETTE, LOUISIANA.” *


author: LOBRANO, Judge. PER CURIAM.

text:
    Lionel JACKSON v. MALONEY TRUCKING & STORAGE, INC.
    No. 13213.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Jan. 14, 1983.

      Bruce S. Kingsdorf, Morris H. Hyman, New Orleans, for plaintiff/appellee.
    John H. Ryan, New Orleans and Perrin Butler, Metairie, for defendant/appellant.
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

Plaintiff instituted this suit for the recovery of workmen’s compensation benefits for total and permanent disability and also for the allowance of statutory penalties and attorney’s fees. After trial judgment was rendered in favor of claimant awarding compensation benefits at the rate of 662/3% of the difference between the wages earned at the time of the injury and any lesser wages that he might earn for a period of 400 weeks, together with interest on each week’s compensation from date due until paid. The judgment further awarded him 12% penalties, and attorney fees in the amount of $2,000.00. The defendant was cast for all costs, including expert fees. From the above judgment defendant has perfected this appeal.

Plaintiff has answered the appeal, arguing that his injuries constitute a permanent and total disability, or in the alternative, that the trial court erred in awarding compensation benefits for a period of 400 weeks rather than the 450 week maximum as provided in R.S. 23:1221(3). He also seeks an increase in the attorney’s fees awarded, and damages for frivolous appeal.

On August 9,1979, plaintiff, Lionel Jackson was employed by Maloney Trucking and Storage, Inc. to assist in the unloading of several 55 gallon drums weighing approximately 600 pounds each. While unloading one of the drums its full weight fell back on him as he attempted to keep it from falling on his leg. He immediately heard a pop in his back. He then laid down on the loading dock, and stayed there for approximately 35 minutes or more while the individual who was with him called the company to inform them that plaintiff had been injured.

Plaintiff saw a Dr. Smith shortly after the accident and was referred to Dr. Terry L. Habig, an orthopedic surgeon who subsequently admitted him to Southern Baptist Hospital. His diagnosis was acute lumbo-sacral sprain with evidence of radiculitis involving the left SI nerve. While in Baptist Hospital, he was treated with pelvic traction and bedrest for one week and then started on a program of physical therapy. Upon discharge from the hospital, plaintiff continued to complain of back and leg pains. Examination by Dr. Habig on October 17, 1979, revealed limitation of back motion to about 60 degrees and discomfort on the left side of the back during straight leg raising examination at 70 degrees. At this examination, Dr. Habig further recommended the resumption of physical therapy and noted that in the event plaintiff’s condition did not improve, he should be admitted to the hospital for a myelogram. Dr. Habig thereafter saw plaintiff on November 14, 1979, and December 5, 1979; and, although he noted discomfort in the patient, he felt that the patient was doing better. On December 5, 1979, he concluded the plaintiff could return to light duty but recommended that he stay off of a job which required lifting objects weighing more than 25 pounds, or a job which required frequent bending. It is disputed whether plaintiff was completely discharged by Dr. Habig on December 5th.

After the December 5th date, plaintiff did not return to Dr. Habig, but began treatment under Dr. Nutik, an orthopedist, and Dr. Martin, a neurologist. After lengthy treatment they ultimately recommended a myelogram and CAT scan, believing that it was unlikely that the pain would spontaneously diminish and that surgery would probably be necessary. Plaintiff visited Dr. Nutik beginning January 21, 1980 through September 3, 1980. Although we find some inconsistencies in Dr. Nutik’s testimony as to causation, he concludes with the opinion that plaintiff is suffering from a nerve compression of the L3-4 on the left side, consistent with his complaints of numbness and pain in the left leg. After a review of various X-rays at trial, he concludes “with a good degree of certainty” that plaintiff’s pain and discomfort were related to the August 9, 1979 incident. He also feels that surgery may correct his problem, although there exists a possibility that plaintiff might have permanent loss of function in his leg. The trial court found that plaintiff sustained a partial permanent disability as defined in La.R.S. 23:1221(3). We disagree.

Plaintiff argues that the trial court erred in failing to find permanent and total disability under the so-called “odd lot” doctrine. Under that doctrine a compensation claimant is considered totally disabled if his injury makes him an odd lot in the labor market; that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity, that a reasonably stable market for his services does not exist. Lattin v. Hica Corp., 395 So.2d 690 (La.1981). Substantial pain can prevent gainful employment for wages so as to entitle an injured worker to total disability under the “odd lot doctrine”. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). A claimant is partially disabled if he cannot perform the duties of his former employment but can still do other work. La.R.S. 23:1221(3); LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir.1977); Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3rd Cir.1979).

Fully realizing that disability is a question of fact which should not be disturbed in the absence of manifest error, we must nonetheless find that plaintiff is totally and permanently disabled within the interpretations handed down by our Supreme Court in Wilson and Lattin, supra. The plaintiff was 58 years old at the time of his injury, and his previous occupation was that a chef. He received special training in the Navy, and practiced his occupation in many of the restaurants of New Orleans. The uncontroverted testimony of Dr. Nutik in response to a question concerning plaintiff’s ability to resume his duties as a chef was:

“Stating that I had previous experience working in a kitchen while I was working through medical school, a chef is involved with lifting heavy pots. He’s required to load and unload these pots and pour water in and out of the pots. I feel that he could not, with the back pathology he has, would be able to stand all day even stirring these pots and doing type of work necessary to be a master chef.” TR. Vol. II p. 57.

Plaintiff has proved by a preponderance of the evidence that he would not be able to return to any gainful employment without suffering substantial pain, and is therefore entitled to compensation benefits for total disability. If his condition becomes ameliorated because of future surgery, and he is able to find regular employment that does not involve aggravation of the back injury, it would be appropriate for his former employer to seek modification of this judgment. La.R.S. 23:1331.

PENALTIES AND ATTORNEY FEES

The defendant assigns as error the trial judge’s finding that its termination of benefits in December of 1979 was arbitrary and capricious. That determination depends primarily on the facts known to the employer at the time of its action and is a question of fact not to be disturbed in the absence of manifest error. Scott v. Sears Roebuck & Co., 406 So.2d 701 (La.App. 2nd Cir.1981).

In the case at bar compensation benefits in the amount of $133.00 per week were originally paid by defendant, until receipt of the December 5, 1979 medical report of Dr. Terry Habig. In that report, Dr. Habig concluded that plaintiff could return to light duty but should not work at a job .which required lifting heavy objects or one which required frequent bending. As a result defendant terminated all compensation benefits and refused to pay any additional medical expenses. Plaintiff then sought additional medical treatment and despite timely submission of medical reports which indicated that plaintiff was still disabled and required medical treatment, defendant failed and refused to tender any additional workmen’s compensation benefits or pay any medical expenses.

Dr. Habig’s statement that plaintiff was able to return to “light duty” did not discharge defendant from the obligation of paying compensation benefits. The jurisprudence is clear that weekly compensation benefits should not be discontinued when the employer knows that the employee is at least partially disabled. King v. Insurance Company of North America, 288 So.2d 878 (La.App. 3rd Cir.1974). When Maloney Trucking Co. terminated benefits it knew that Jackson was limited to light duty, and was still entitled to benefits under La.R.S. 23:1221(3). See, Morgan v. Lumbermen’s Mutual Casualty Corp., 317 So.2d 7 (La.App. 1st Cir.1975); Lachney v. Cabot Corp., 368 So.2d 500 (La.App. 3rd Cir.1979); Brewton v. L.L. Brewton Lumber Co., Inc., 349 So.2d 1364 (La.App. 2nd Cir.1977). We agree that the trial court was correct in concluding the termination was arbitrary and capricious. The awarding of penalties and attorney fees was therefore proper.

The trial court has great discretion in fixing the amount of attorney fees, and we find no reason to disturb the award of $2,000.00 granted below. Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3rd Cir.1976). However, because ap-pellee has been successful in answering this appeal, we will award an additional $500.00 in attorney fees for prosecuting same. See, McClelland v. Liberty Mutual Insurance Co., 180 So.2d 19 (La.App. 2nd Cir.1965); Chavis v. Maryland Casualty Co., 307 So.2d 663 (La.App. 3rd Cir.1975).

Accordingly, for the reasons assigned herein, the judgment of the lower court is hereby amended to award total and permanent disability benefits to plaintiff, as well as increase the attorney fees to $2,500.00. In all other respects, said judgment is affirmed. Appellant, Maloney Trucking and Storage Inc. is cast for all costs of this appeal.

AMENDED, AND AS AMENDED, AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

A rehearing is granted herein for the limited purpose of amending our original decree by providing that defendant, Malo-ney Trucking & Storage, Inc. is entitled to those credits and reductions provided in La. R.S. 23:1225. Accordingly, this matter is remanded for a determination of those reductions.

      . Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979); Arcenaux v. Domingue, 365 So.2d 1330 (La.1978).


author: SAVOIE, Judge.

text:
    In re Appeal of Merlin BRISSET (DHHR, Office of Charity Hospital of Louisiana at New Orleans).
    No. 82 CA 0013.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 27, 1983.

      Eavelyn T. Brooks, Stephen J. Caire, Asst. Attys. Gen., Dept, of Justice, New Orleans, for William J. Guste, Jr.
    Philip H. Kennedy, H.M. Westholz, Jr., Staff Attys., Dept, of Health & Human Resources, New Orleans, for D.H.H.R.
    Archie C. Tatford, Jr., New Orleans, for Merlin Brisset.
    Laura Denson Holmes, Atty. for Director of Dept, of St. Civil Service, Baton Rouge, for George Hamner.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

The State of Louisiana, on its behalf and on behalf of Merlin Brisset, appellant, appeal a decision of the Civil Service Commission. Appellant claims the Commission erred in two respects: (1) Refusing to enforce the provisions of L.S.A.-R.S. 42:1451 and declaring it unconstitutional and (2) Concluding that just cause existed for the February 1,1980, reprimand of Merlin Bris-set.

The Civil Service Commission’s decision is vacated to the extent that it declares L.S.A.-R.S. 42:1451 unconstitutional. The Commission lacks authority to determine the constitutionality of state statutes. Further, we conclude the attorney general has no authority to appeal the Commission’s decision with respect to Merlin Brisset’s reprimand. Accordingly, we dismiss that portion of the appeal.

The function of interpreting the constitution and laws of the state rests exclusively upon the courts. State, through the Department of Highways v. Constant, 359 So.2d 666 (La.App. 1st Cir.1978), amended and affirmed as amended, 369 So.2d 699 (La.1979); La. Constitution 1974, Art. V, Sec. 1. The judicial power in this state is vested in the Supreme Court, courts of appeal, district courts, and other courts authorized by Article V, Sec. 1 of the constitution. La. Const.1974, Art. V, Sec. 1. Further, the constitution provides that the powers of the government are divided into three separate branches: legislative, executive, and judicial; and, that no one of these branches, nor persons holding office therein, shall exercise power belonging to either of the others. La. Const. Art. II, Sec. 1 and 2, respectively. In addition, the constitution provides for the powers of the Civil Service Commission. La. Const. Art. X, Sec. 10 and 12. Nowhere in these articles is the Commission granted the power or authority to interpret the laws of this state. For these reasons, the Commission’s ruling declaring L.S.A.-R.S. 42:1451 unconstitutional is vacated.

Enactments of the legislature are presumed to be constitutional and valid until declared otherwise by a court of competent, jurisdiction. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975). Therefore, the Commission committed manifest error by refusing to apply the provisions of L.S.A.-R.S. 42:1451 and denying attorney’s fees to appellant Brisset.

Secondly, appellant argues the Commission erred in concluding that just cause existed for the February 1, 1980, reprimand of Merlin Brisset. Without reaching the merits of this assignment of error, we conclude that the attorney general has no right of action to raise this matter on appeal.

Louisiana Constitution Article IV, Section 8 provides that the attorney general has the authority to institute, prosecute or intervene in any civil action or proceeding, as necessary, for the assertion or protection of any right or interest of the state. Since no right or interest of the state is aggrieved by the Commission’s affirmance of Merlin Brisset’s reprimand, the attorney general is without authority to appeal Brisset’s reprimand.

L.S.A.-C.C.P. art. 927 allows the appellate court to notice on its own motion the peremptory exception of no right of action. It being so noticed, we dismiss that portion of the appeal.

For the foregoing reasons, the decision of the Civil Service Commission is vacated to the extent that it declares L.S.A.-R.S. 42:1451 unconstitutional. Further, we dismiss the appeal insofar as it concerns the reprimand of Merlin Brisset dated February 1, 1980. All costs for which it is liable are to be borne by appellee.

VACATED IN PART AND DISMISSED IN PART.

      . L.S.A.-R.S. 42:1451:
      “Action overruled; attorneys’ fees
      “In any appeal under Article X Section 8 of the constitution by an employee in the classified state civil service to overturn any action by the department or agency employing him in which the decision to take the action is overruled and such decision is found to be unreasonable, the Civil Service Commission shall order the department or agency to pay reasonable attorneys’ fees incurred by the employee in appealing the action.”


author: LOTTINGER, Judge.

text:
    Grace Lloyd GORDON v. Norman W. GORDON, Sr.
    No. 82 CA 0117.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Rodney C. Cashe, Hammond, for plaintiff.
    A. Wayne Stewart, Denham Springs, for defendant-appellant.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an appeal by defendant, Norman Gordon, Sr., from a judgment “homolgating and ratifying” an agreement styled “Tentative Community Property Settlement.”

FACTS

Norman Gordon, Sr. and Grace Lloyd Gordon were judicially separated on March 10, 1977. On or about June 17, 1977, Mr. Gordon filed a suit for partition of the community property of the marriage. The trial court ordered a notary public to make an inventory of the community property.

Sometime in early September, 1977, Mr. and Mrs. Gordon discussed a voluntary partition of the community property. The document entitled a “Tentative Community Property Settlement Agreement” was executed by Mr. Gordon, Sr. on September 19, 1977, and by Grace Lloyd Gordon on October 7, 1977. Mrs. Gordon accepted on the latter date subject to Mr. Gordon’s acceptance of an addendum to the agreement which she attached to the main document. Mr. Gordon signified his assent to the addendum by signing it on October 14, 1977. The full text of the “Tentative Community Property Settlement Agreement” and addendum is attached as an appendix.

Mrs. Gordon stated that she and her children moved out of the family house as of the signing of the agreement in October, 1977. Mr. Gordon said that he has lived in the house since then except for a six-month period during which he rented the house to a tenant.

Apparently, the Gordons obtained a judgment of divorce on July 21, 1978. More than a year later, Mrs. Gordon made demand upon Mr. Gordon in October of 1979 to execute a final community property settlement in accordance with the earlier 1977 tentative property settlement. He refused and she brought the present suit for specific performance to compel Mr. Gordon to do so.

SPECIFICATIONS OF ERROR

The appellant, Mr. Gordon assigns four errors on appeal:

1) The trial court erred in adjudging the “Tentative Community Property Settlement Agreement” binding upon the parties.

2) The trial court’s judgment was not responsive to the pleadings.

3) The trial court’s judgment is erroneous because it fails to include other community assets and community debts.

4) The trial court erred in not setting the agreement aside because the partition is lesionary as regards the appellant.

I

Appellant argues that a casual reading of the agreement must lead the court to the conclusion that the parties involved only intended to initiate a community property settlement.

Since the trial court by its judgment homolgated and ratified this agreement, it must have concluded as we do that the only tentative issue in the agreement was the “dimension” or description of the property to be received by plaintiff, Grace Gordon. This lone issue was settled when plaintiff and defendant executed an addendum to the original agreement and described the property to be received by Grace Gordon.

Thus we conclude as did the trial judge that since this property was the only remaining community asset, and there were no outstanding community debts, that there were no additional issues to be resolved by the parties.

II

Appellant contends that Mrs. Gordon sought specific performance, but the trial court instead decreed a transfer of title to Mrs. Gordon.

What the trial judge did was to decree the end result instead of ordering specific performance within a certain time frame, and in the absence of the defendant executing a community property settlement, to decree a transfer of title. We agree with the appellant that the trial judge was technically in error. Thus we will amend the judgment to order the defendant Norman Gordon, Sr. to execute a community property settlement under the terms of the 1977 agreement between the parties as amended within 15 days of the finality of this judgment, and if the defendant fails to do so, this judgment shall transfer title to each party.

III

The record is clear that there were no remaining community assets to be partitioned, nor were there any outstanding community debts. Thus this argument of error has no merit.

IV

Appellant argues that the community property settlement should be set aside on the basis of lesion.

On October 16,1980, a notary public conducted an inventory of the immovable property belonging to Mr. and Mrs. Gordon. With the aid of an appraiser he calculated the total worth of the property to be $37,-083. This appraisal was based on the three tracts of land owned by the Gordons and the former family home, smokehouse, and hay bam which were in poor condition. The appraiser found that the property was worth $1,500 an acre, and the house and other structures were worth $6,000. The proper way to determine lesion beyond one-fourth is to first determine the true value of the property partitioned and to then calculate whether a party received three-fourths of his share. La.Civ.C. arts. 1860, 1861 and 1398; Bedwell v. Bedwell, 399 So.2d 685 (La.App. 1st Cir.1981).

If the total value of the community estate was $37,083 and half would be $18,-541.50, then the defendant must receive at least a value of $13,906.13; otherwise the agreement is lesionary.

By the terms of the settlement agreement the defendant is to receive the house and other buildings valued at $6,000 plus five (5) acres at $1,500 each, or a total of $13,500. Thus it would appear that defendant is short by $406.13 the least amount that he should have received. However, we note that though the settlement agreement mentions that each party is to receive a certain amount of acreage, the agreement describes by metes and bounds the property that each is to receive as a result of the settlement. There were no surveys introduced into evidence to show that the property described contained only the acreage allocated. Since the difference in value is so small, and same could be contained in the acreage received by defendant, we are of the opinion that Norman Gordon has failed to prove lesion.

Therefore, for the above and foregoing reasons:

IT IS ORDERED, ADJUDGED AND DECREED that Norman W. Gordon, Sr. be and he is hereby ordered within fifteen (15) days of the finality of this judgment to execute a community property settlement agreement with Grace Lloyd Gordon under the same terms and conditions of the “Tentative Community Property Settlement Agreement” executed by Norman W. Gordon, Sr. on September 19, 1977, and by Grace Lloyd Gordon on October 7,1977 and the addendum to “Tentative Community Property Settlement” executed by Norman W. Gordon, Sr. on October 14, 1977 and by Grace Lloyd Gordon on October 7, 1977, a copy of which is attached as an appendix.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the absence or refusal of Norman W. Gordon, Sr. to execute a community property settlement as above ordered, then Norman W. Gordon, Sr. be and he is hereby declared the sole owner of the following described property, which ownership is exclusive of any rights of ownership formerly held by Grace Lloyd Gordon, to wit:

A CERTAIN TRACT OR PARCEL OF LAND situated in Sec. 5, T7S, R6E, Livingston Parish, Louisiana, and being more particularly described as commencing at the northwest corner of the northeast quarter of said Sec. 5; thence proceed south 1,269.70 feet for a point of beginning; from said point of beginning continue south 400 feet; thence east 535 feet; thence north 370 feet; thence east 128.96 feet; thence north 30 feet; thence west 663.96 feet to the point of beginning containing 5 acres more or less;

The said Norman W. Gordon, is declared the owner of said property without warranty, but with full subrogation to all rights of warranty as were formerly held by Grace Lloyd Gordon.

And that Grace Lloyd Gordon be and she is hereby declared the sole owner of the following described property, which ownership is exclusive of any ownership interest as may heretofore been held by Norman W. Gordon, Sr., to wit:

A CERTAIN TRACT OR PARCEL OF LAND situated in Sec. 5, T7S, R6E, Livingston Parish, Louisiana and being more particularly described as commencing at the northwest corner of the northeast quarter of said Sec. 5; thence proceed south 1,669.70 feet for a point of beginning; from said point of beginning continue south 1,039 feet; thence east 613.85 feet; thence north 1,353 feet; thence west 128 feet; thence south 370 feet; thence west 535 feet to the point of beginning;
Together with a right of way 30 feet in width extending from the northeast corner of the above described property on a westerly direction to the public road which lies east of the Hugh Smith Tract.

As amended, the judgment of the trial court is affirmed at defendant-appellant’s costs, both in the trial court and in this court.

AMENDED AND AFFIRMED.

APPENDIX

TENTATIVE COMMUNITY PROPERTY SETTLEMENT AGREEMENT

BETWEEN: Norman W. Gordon

AND: Grace A. Gordon

BE IT KNOWN BY THESE PRESENTS that on this date, before the undersigned Notaries Public, personally came and appeared Norman W. Gordon and Grace A. Gordon, who, after being first duly sworn, did depose and say:

That they were legally separated from bed and board during the month of March, 1977, by judgment of the 21st Judicial District Court, Parish of Livingston, State of Louisiana.

That since that time, the parties have not lived together as husband and wife and have not reconciled, and they are appearing herein for the purpose of tentatively settling the community regime which existed prior to legal separation.

In order to effect a tentative settlement, Norman W. Gordon is to receive the house, furniture and fixtures, five (5) acres of land, well and pump, said five (5) acres of land to encircle the house, and described as follows:

Starting at the Northwest corner of the Northeast Quarter (NE Vi) of Section 5, T7S, R6E, proceed South 1269.70 feet for the point of beginning. Thence South 400 feet and corner; thence East 535 feet and corner; thence North 370 feet and corner; thence East 128.96 feet and corner; thence North 30 feet and corner; thence West 663.96 feet to point of beginning, containing approximately five (5) acres.

The possession of said house by Norman W. Gordon is to take effect as of the signing of this agreement.

Grace A. Gordon, as part of her settlement, is to receive the remaining sixteen (16) acres of land along with the well situated thereon, which is the remaining property purchased from William M. Hoover on February 13, 1964, and from Hugh Smith on April 7, 1975; the dimension of said tract to be revealed at the time of the final community property settlement agreement.

The said appearers are parties in the action entitled Norman W. Gordon vs. Grace A. Gordon, Number 29,401, 21st Judicial District Court, Parish of Livingston, State of Louisiana. The said appearers have tentatively agreed upon this settlement pursuant to said partition action wherein Norman W. Gordon is to receive the above five (5) acres and Grace A. Gordon is to receive the remaining sixteen (16) acres.

ADDENDUM TO TENTATIVE COMMUNITY PROPERTY SETTLEMENT

Norman W. Gordon and Grace A. Gordon hereby agree as an addendum to that certain Tentative Community Property Settlement executed by Norman Gordon on September 19, 1977 and by Grace Gordon on October 7, 1977, as follows:

The property to be received by Grace Gordon in the final community property settlement shall be described on Exhibit “A” attached hereto and initialed by the parties.

In addition to the property received by Grace Gordon together with a well situated thereon, she shall receive a right of way thirty (30) feet in width from the Northeast corner of the property received by her in a Westerly direction and leading from property received by Norman Gordon to the public road which lies East of the Hugh Smith tract.

It is agreed and understood that each parcel to be received by each party shall be free and clear of all liens and encumbrances at the time of the final community property settlement.