author: HALL, Judge. HALL, Judge.

text:
    A.C. WHATLEY, Plaintiff-Appellee, v. Bonnie Friday WHATLEY, Defendant-Appellant.
    No. 15476-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1983.
    On Rehearing Sept. 20, 1983.

      Whitehead & McCoy by C.R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    Horton & Jones by William R. Jones, Coushatta, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

After obtaining a separation from bed and board from her husband, Mrs. Whatley petitioned for a partition and accounting of community property. Mr. Whatley answered, alleging that Mrs. Whatley’s separate estate was indebted to the community and to his separate estate in an amount in excess of the value of her interest in the community, and accordingly her interest in the community had a negative value.

The principal item in dispute on trial of the matter was the status of $31,928 received shortly before the community was terminated for a five-year paid-up oil, gas, and mineral lease of Mr. Whatley’s separate property. The trial court held that the amount received should be prorated over the five-year primary term of the.lease, with the community getting credit for the part of the payment attributable to the period between execution of the lease and termination of the community and Mr. Whatley’s separate estate getting credit for that part of the payment attributable to the period between termination of the community and the end of the five-year term. Taking into account other debts and assets, the trial court then concluded that Mrs. Whatley owed Mr. Whatley more than the value of her interest in the community. Judgment was rendered rejecting her demands for a partition and an accounting, and she appealed.

While the partition proceeding was pending, Mr. Whatley petitioned for a final divorce and Mrs. Whatley reconvened for alimony. After trial, judgment was rendered granting the divorce and rejecting Mrs. Whatley’s claim to alimony, and she appealed from that part of the judgment denying alimony.

The appeals have been consolidated in this court and both appeals are considered and decided in this opinion.

Partition and Accounting

After about eight months of marriage, Mr. and Mrs. Whatley separated in November 1981. He filed suit for separation on December 3 and Mrs. Whatley filed a recon-ventional demand for separation on December 16, 1981. By judgment signed on March 4,1982, Mr. Whatley’s demands were denied and Mrs. Whatley was awarded a judgment of separation. The parties agree that the community was terminated as of the date Mrs. Whatley filed her reconven-tional demand, December 16, 1981. LSA-C.C. Art. 155.

On October 28,1981 Mr. Whatley granted an oil, gas, and mineral lease on 307 acres of land which is his separate property. The lease is for a five-year primary term and is a “paid-up” lease, that is, it does not provide for delay rentals. A draft for $31,928 was given to Mr. Whatley on October 30, but was not paid until December 15, 1981, one day prior to dissolution of the community.

The trial court found it illogical for Mrs. Whatley to receive one-half of the lease payment which covered a five-year period simply because she happened to be the wife of the lessor at the time of execution of the lease and payment of the total amount applicable to the entire lease period. The court felt “bound in law and equity” to apportion the consideration commensurate with the period the community existed from the inception of the lease to the dissolution of the community. Finding that the community existed for 49 days subsequent to execution of the lease, which is 2.68 percent of the total term of the lease, the court held that $857.24 was attributable to the community.

Appellant Mrs. Whatley contends that the consideration for the oil, gas, and mineral lease, whether considered as bonus or rental or both, is community property under the express provisions of LSA-C.C. Art. 2339 which provides:

“The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property by a declaration made in authentic act or in an act under private signature duly acknowledged.
“As to the fruits and revenues of im-movables, the declaration is effective when filed for registry in the conveyance records of the parish in which the immovable property is located. As to fruits of movables, the declaration is effective when filed for registry in the conveyance records of the parish in which the declar-ant is domiciled.”

The equitable appeal of appellee’s argument and the trial court’s decision must yield to the positive expression of law contained in LSA-C.C. Art. 2339. Bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases “are community property.” The express provision of Article 2339, enacted by Act 709 of 1979, effective January 1, 1980 as part of the comprehensive revision of matrimonial regime laws, codifies and continues the rule of Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952) and McElwee v. McElwee, 255 So.2d 883 (La.App. 2d Cir. 1971), which held that mineral lease payments are civil fruits which fall into the community.

The status of property as community or separate is fixed at the time of its acquisition. Vining v. Beatty, 161 So.2d 298 (La.App. 2d Cir.1964). Property is either separate or community, not mixed. Curtis v. Curtis, 403 So.2d 56 (La.1981). There is no authority for reclassifying community property after dissolution of the community, or for apportioning a part thereof to the separate estate of one of the spouses.

Under LSA-C.C. Art. 2344 personal injury damages are given special treatment, but no such special treatment is provided for mineral lease payments. The pension and retirement plan cases, such as T.L. James Co., Inc. v. Montgomery, 332 So.2d 834 (La. 1975), are not analogous because they deal with payments received or to be received after dissolution of the community. The same is true of West v. Ortego, 325 So.2d 242 (La.1975), dealing with workers’ compensation benefits, and Broussard v. Broussard, 340 So.2d 1309 (La.1976), dealing with interest on savings certificates, both involve ing payments made after dissolution of the community.

The mineral lease payment received during the existence of the community is community property, and Mr. Whatley is required to account to Mrs. Whatley for her one-half community interest in the amount of the payment.

Neither party disputes the findings of the trial court as to other items of assets and debts involved in the partition and accounting. Taking the trial court’s finding on these other items, and considering the lease payment for which Mr. Whatley must account, it appears that the net result is that Mr. Whatley owes Mrs. Whatley $15,-451.85 in settlement of the community and the respective claims of the parties’ separate estates. The judgment in the partition action will be reversed and set aside and the partition action will be remanded for further proceedings to complete the partition and accounting in accordance with the views expressed in this opinion.

Alimony

Prior to her marriage to Mr. What-ley in April 1981, Mrs. Whatley worked as a postmaster earning about $24,000 annually. She left her job when she married and began drawing disability retirement benefits of $770 per month, out of which about $100 is deducted for life and hospitalization insurance. She cares for an eight-year-old grandson whose father pays her $200 per month and other expenses of the child. She has about $50,000 equity in her home. Her monthly expenses total about $800. She has no significant debts.

Mr. Whatley is 61 years old and a painting contractor by trade. His income from painting has been minimal the past year or so. He lives on and runs cattle on his 307-acre farm, which he estimated to be worth about $500,000 and which is paid for. His farm operation showed a loss for 1981.

We find no abuse of discretion by the trial court in denying alimony. Mrs. What-ley’s income, means, and assets are sufficient for her support. LSA-C.C. Art. 160. The trial court’s decision is bolstered by the fact that under the decision of this court, Mrs. Whatley will receive a substantial payment in settlement of the community, adding to her means.

Decree

The judgment of the district court signed January 20, 1983 denying Mrs. Whatley’s claims against the community is reversed and set aside. The action for partition and accounting of the community is remanded to the district court for further proceedings in accordance with the views expressed in this opinion.

The judgment of the district court signed December 9, 1982 granting a divorce and denying Mrs. Whatley’s claim for alimony is affirmed.

Costs of the appeals are assessed one-half to Mr. Whatley and one-half to Mrs. What-ley.

ON REHEARING

Before PRICE, HALL, JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.

HALL, Judge.

The original opinion rendered in this matter resolved the principal issue presented by this appeal, that is, the status of the oil and gas lease payment. In the original opinion we indicated that neither party disputed the findings of the trial court as to other items of assets and debts involved in this partition and accounting. Mr. Whatley’s rehearing application correctly called to our attention the fact that, in brief, he had complained of the trial court’s rulings regarding some of the other items disputed in this case. Consequently, we granted a rehearing limited to a consideration of the correctness of the trial court’s rulings concerning those other items.

Mrs. Whatley contends that we should not consider Mr. Whatley’s arguments on those other items because he did not take an appeal or answer her appeal. This argument is not well taken.

The trial court’s judgment was entirely favorable ' to Mr. Whatley. That judgment rejected Mrs. Whatley’s demand in full. There was no need for Mr. Whatley to appeal or answer Mrs. Whatley’s appeal. This court could not grant him any more favorable relief than that previously granted him by the trial court. By his allegations of erroneous trial court rulings respecting some of the other items as expressed in the trial court’s reasons for judgment, Mr. Whatley still does not seek more favorable relief than that granted by the trial court’s judgment, but only seeks certain corrections which will reduce the amount he owes Mrs. Whatley as found by this court on original hearing, $15,451.85. No appeal, nor any answer to an appeal as contemplated by LSA-C.C.P. Art. 2133, was required in order for this court to consider Mr. Whatley’s contentions in that respect.

There were a number of issues at trial other than the status of the oil and gas lease payment. In his reasons for judgment the trial judge resolved these issues as follows:

(1) The haycutter acquired by Mr. Whatley was purchased entirely with his separate funds and no reimbursement was owed to the community;
(2) Community funds were used to make payments on a tractor which was the separate property of Mr. Whatley and his separate estate owed reimbursement to the community in the amount of $2,134.16;
(3) Community funds were used for the benefit of Mrs. Whatley’s separate estate and reimbursement was owed by her to the community in the amount of $1,854.40;
(4) Mr. Whatley’s claim for damages to his house, which was the couple’s residence during their marriage and is his separate property, as a result of a grease fire was denied. With the exception of a $100 deductible, the trial judge found that the damage claim had been satisfied by Mr. Whatley’s insurer. Reimbursement from the community to Mr. What-ley’s separate estate in the amount of $100 was ordered to cover the damage not compensated for under the insurance policy;
(5) Mr. Whatley’s claim for reimbursement by the community for proceeds of the sale of cattle belonging to his separate estate and Mrs. Whatley’s claim for the value of calves belonging to the community were held to offset each other, and no reimbursement was ordered;
(6) Reimbursement of the community by Mr. Whatley’s separate estate in the amount of $2,114.15 was ordered to settle the joint checking account;
(7) 3,500 bales of hay valued at $1 per bale were accumulated during the existence of the community and Mr. Whatley’s separate estate was ordered to reimburse the community in the amount of $3,500;
(8) Mrs. Whatley’s separate estate was ordered to reimburse the community in the amount of $8,287.20 because community funds were used in satisfaction of her separate debts; and
(9) Reimbursement by Mr. Whatley’s separate estate to the community in the amount of $1,469 was ordered because carpet, drapes, and fans were purchased during the existence of the community with community funds and installed in Mr. Whatley's house which is his separate property.

In his original brief filed in this court and in his application for rehearing, Mr. What-ley complains of the trial court’s rulings on the following items:

(1) The trial court’s finding that Mr. Whatley’s separate estate was not entitled to reimbursement for sales of cattle belonging to his separate estate;
(2) The trial court’s ruling requiring Mrs. Whatley’s separate estate to reimburse the community in the amount of $8,287.20 because community funds were used in satisfaction of her separate obligations, including a mortgage on her separate property. Mr. Whatley contends that the trial court should have ruled that Mrs. Whatley’s separate estate owed his separate estate the sum of $3,287.20, representing that portion of Mrs. Whatley’s separate indebtedness paid before establishment of the community and after the community was dissolved,’ and owed the community reimbursement in the amount of $5,000, representing that portion of her separate indebtedness paid during the existence of the community with community funds;
(3) The trial court’s ruling requiring Mr. Whatley’s separate estate to reimburse the community for carpet, drapes, and fans purchased with community funds and installed in Mr. Whatley’s house which is his separate property. Mr. Whatley contends that the evidence introduced at trial is insufficient to substantiate these alleged improvements to his residence and reimbursement by his separate estate to the community should not have been ordered; and
(4) The trial court’s ruling that Mr. Whatley’s separate estate owed reimbursement to the community because funds in the couple’s joint checking account had been used for the benefit of his separate estate; Mr. Whatley contends the trial court should have held that the community owed reimbursement to his separate estate in the amount of $1,620.80, representing the separate funds present in his checking account at the time of the marriage.

Concerning the sale of cattle, the evidence discloses that during the existence of the community Mr. Whatley sold on several occasions a total of 25 head of cattle for a total price of $6,932.32. It is apparent that most if not all of the cattle sold were owned by Mr. Whatley as his separate property prior to the marriage because calves born after the community was established could not have grown to the size of the cattle sold as shown by the sales slips. The proceeds of the sales of Mr. Whatley’s separate cattle were used to pay community expenses and he is entitled to reimbursement from the community for the proceeds. Mrs. Whatley originally claimed reimbursement from Mr. Whatley for 10 calves, valued at $150 each, born during the existence of the community. The evidence at trial established that more than 10 calves were born and the maximum value which could be attributed to these calves which have been retained by Mr. Whatley is $3,000, a somewhat arbitrary but reasonable figure based on the testimony concerning the number of cows and the values disclosed by the prices received for the cattle that were sold. Mr. Whatley owes the community reimbursement for $3,000. The trial court’s ruling that the two claims offset each other was erroneous.

Concerning the payment of $8,287.20 in satisfaction of Mrs. Whatley’s separate debts which she owed prior to the marriage, the evidence discloses that $3,287.20 was paid by Mr. Whatley from his separate funds and $5,000 was paid from community funds. Mrs. Whatley owes Mr. Whatley the $3,287.20 paid by him from his separate funds and she owes the community reimbursement of the $5,000 paid from community funds. The trial court’s ruling that Mrs. Whatley owed reimbursement to the community for the entire amount of $8,287.20 was erroneous.

Concerning reimbursement by Mr. Whatley’s separate estate to the community for carpet, drapes, and fans installed in his separate residence at community expense, the evidence presented amply supports the trial court’s ruling and there was no error in this respect.

Concerning the joint checking account, the evidence discloses that at the commencement of the community there was $1,620.80 of Mr. Whatley’s separate funds in the account and that at the termination of the community the account had a balance of $506.09, which Mr. Whatley apparently retained. Funds in this account were used to pay community expenses during the marriage. Accordingly, Mr. Whatley is entitled to reimbursement from the community for the difference, or $1,113.91. The trial court’s ruling that he owed reimbursement to the community in settlement of the account was in error.

Taking the various items determined by the trial court about which there is- no dispute and the items in dispute on appeal as resolved in this opinion and in our original opinion, the result is as follows:

Amounts owed to the community by the separate estate of A. C. Whatley:
Mineral lease payment ... $31,928.00
Value of calves. 3,000.00
Value of hay. 3,500.00
Fans, carpet & drapes ... 1,469.00
Payments on tractor .... $ 2,134.16 $42,031.16
LESS amounts owed by community to A. C. Whatley’s separate estate:
Damage to house. $ 100.00
Separate cattle sold. 6,932.32
Joint bank account. 1,114,71 $ 8,147.03
Balance owed by Mr. Whatley to the community .$ 33,884.13
Amount owed by Mr. Whatley to Mrs. Whatley for her ⅜⅞ community interest.$ 16,942.07
Amounts owed to the community by the separate estate of Mrs. Whatley:
Various separate debts paid. $ 1,854.40
Other separate debts paid. 5,000.00
Balance owed by Mrs. Whatley to the community .$ 6,854.40
Amount owed by Mrs. Whatley to Mr. Whatley for his ⅛ community interest.$ 3,427.20
Net owed by Mr. Whatley to Mrs. Whatley for community interest .$ 13,514.87
LESS amount owed by Mrs. Whatley to Mr. Whatley .$ 3,287.20
Balance due by Mr. Whatley to Mrs. Whatley .$ 10,227.67.

For the reasons assigned, our original decree is reinstated insofar as it affirmed the judgment of the district court signed December 9,1982 granting a divorce and denying Mrs. Whatley’s claim for alimony and insofar as it reversed and set aside the judgment of the district court signed January 20, 1983 denying Mrs. Whatley’s claims against the community. The action for partition and accounting of the community is remanded to the district court for further proceedings in accordance with the views expressed in our original opinion, as modified by this opinion on rehearing. Costs of the appeal are assessed one-half to Mr. Whatley and one-half to Mrs. Whatley.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    HOPE DEVELOPERS AND CHARBONNET, INC. v. Ann Cook OURSO, et al.
    No. 83 CA 0338.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 1983.

      See also, La.App., 434 So.2d 592.
    William C. Shockey, Baton Rouge, for plaintiff-appellee Hope Developers and Charbonnet, Inc.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellant Ann Cook Ourso.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This court issued a Show Cause Order pursuant to a motion to dismiss filed by the plaintiffs-appellees, which are a partnership in commendam and a corporation.

A recitation of other litigation is deemed appropriate.

Ann Cook Ourso, appellant herein, and William D. Ourso were husband and wife. They were legally separated in August, 1980. A community property settlement was entered into, in which agreement she transferred her interest in certain immovable property in which the appellees herein also have an interest. Mr. Ourso is not a disinterested party to this action because he has an ownership participation in one or both of the appellees.

Three suits have since arisen. In one suit, Mrs. Ourso sued to annul the community property settlement agreement and, in connection therewith, filed a notice of lis pendens. The suit for annulment was decided adversely to her. Mover alleges that no appeal was taken by her.

In another action, Mrs. Ourso sued Mr. Ourso on a promissory note given by him in August, 1980, as part of the consideration in the settlement agreement. She obtained a judgment in excess of $200,000 and recognition of a mortgage on certain immovable property. He has appealed and that case bears docket number 83 CA 0534 in this court.

In yet another suit, the matter sub judice, plaintiffs sought and obtained a judgment ordering that the notice of lis pendens be canceled. Mrs. Ourso appealed and her appeal was previously maintained by this court, Watkins, J., following a motion by these movers to dismiss it as being taken untimely.

Now, the plaintiffs-appellees-movers ask that the appeal be dismissed as being moot. Counsel for Mrs. Ourso has not favored us with a brief in opposition thereto. However, while there are numerous allegations relative to the suit to annul and its denouement, there is no authentic documentation in the record upon which we might safely rely in order to ascertain the necessary facts to enable us to make a determination of this issue. The movers have not borne the burden of proof.

Therefore, the motion to dismiss is denied, at movers’ cost.

MOTION DENIED.


author: LANIER, Judge.

text:
    Linda COLEMAN v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83 CA 0650.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 1983.

      Robert F. Smith, Smith & Hester, Baton Rouge, for appellant.
    R. Gray Sexton, Peter G. Wright, Commission on Ethics for Public Employees, Baton Rouge, for appellee.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is an appeal by an employee of the Office of Family Security, Department of Health and Human Resources from two adverse decisions of the Commission on Ethics for Public Employees (Commission). This court on its own motion issued a rule to show cause why the appeal should not be dismissed for failure of the Commission to properly date the application for appeal and fix its return date. The Commission filed a motion to dismiss the appeal as untimely.

FACTS

The appellant, Linda Coleman, is an employee of the Office of Family Security, Department of Health and Human Resources serving in the permanent status of Eligibility Worker II in the state classified service and is assigned to the St. Helena Parish Office of Family Security. In this capacity, Coleman was directly responsible as a case worker for the eligibility of Lula B. Smith to receive food stamps. On December 14, 1981, Coleman purchased a one acre tract of land and single family dwelling home from Smith. Coleman then leased this property to Smith for a monthly rental of $130. In a decision filed on October 14, 1982, the Commission determined that this conduct by Coleman was a violation of the Code of Governmental Ethics. The Commission ordered Coleman to be suspended without pay for a period of sixty days and pay a fine of $5,000 within sixty days of the date of publication of the decision. The Commission suspended payment of the $5,000 fine provided Coleman reconveyed the property to Smith for a consideration of $2,600 within sixty days free of any mortgages.

Coleman contacted Smith and attempted to reconvey the property to her in accordance with the Commission ruling. Smith refused the offer and subsequently filed suit against Coleman alleging lesion beyond moiety and fraud. On January 25, 1983, Coleman’s attorney appeared before the Commission and advised of the difficulties encountered by Coleman in complying with the Commission’s order. The Commission agreed to delay imposition of the fine until further information could be secured.

On February 28, 1983, the Commission ruled that Smith was entitled to a rental credit of $1,820 from Coleman and that any rescission of the sale must reflect this credit in the purchase price. The Commission further agreed to allow Coleman an extension of sixty days from date of notice to effectuate a rescission of the sale. Smith was notified of the February 28, 1983 rulings of the Commission by letter dated March 10, 1983. This application for appeal was filed by Coleman with the Commission on April 8, 1983.

COMPLIANCE WITH RULE 3-1.2

Whenever a person is aggrieved by an action taken by the Commission, he may appeal directly to this court for relief. This court is mandated to promulgate rules of procedure to be followed in taking and lodging such appeals. La.R.S. 42:1142(A). Rule 3-1.2 of the Uniform Rules of the Courts of Appeal provides as follows:

The administrative body shall endorse on every application for an appeal the. date of its filing and shall fix the return date, which shall not be more than 60 days from the date of filing the application for appeal.

Endorsed on Coleman’s application for appeal is the following:

Rec’d 4-8-83 @ 3:00 p.m. jaj

We have been advised in a joint brief by the parties that “jaj” are the initials of Mrs. Jo Ann Johnson, who is an administrative officer for the Commission. Attached to Coleman’s application for appeal is a notice of appeal form which was developed by the Commission’s staff that fixes the return date of the appeal in this court on June 7, 1983. While it is necessary to endorse the filing date on the application for appeal, there is no requirement that the fixing of the return date be endorsed on the application. The return date need only be fixed timely. There has been compliance with Rule 3-1.2.

The show cause order issued by this court is recalled, vacated and set aside.

TIMELINESS OF APPEAL

Coleman could have asked for a rehearing on the decision of the Commission entered on October 14, 1982, within ten days from its date of entry. La.R.S. 42:1143; La.R.S. 49:959(A). Coleman also had the right to appeal to this court from the October 14, 1982 decision of the Commission within thirty days after that decision became final. La.R.S. 42:1142(A). Coleman did neither. This application was filed on April 8, 1983, well after the delays for applying for a rehearing and/or an appeal had expired. An application for an appeal to this court must be timely for this court to have appellate jurisdiction. When the time fixed by law for appealing has elapsed, the administrative ruling in question becomes final and res judicata. Thomas v. Department of Corrections, 430 So.2d 1153 (La.App. 1st Cir.1983), writ denied 435 So.2d 432 (La.1983). Specifications of error one through four in Coleman’s appeal complain of error involving the Commission’s decision of October 14, 1982. The Commission is entitled to a dismissal of that portion of this appeal.

In assignment of error number five of this appeal, Coleman contends that the Commission committed error by ordering her to give Smith a rental credit of $1,820 against the purchase price of the property. This ruling by the Commission was not made until February 28,1983, and notice of such action was not sent to Coleman until March 10, 1983. Coleman’s appeal from this action is timely and is maintained.

CONCLUSION

For the foregoing reasons, the show cause order issued by this court is recalled, vacated and set aside; that portion of Coleman’s appeal contained in specifications of error numbers one through four is dismissed; and that portion of Coleman’s appeal contained in specification of error number five is maintained. The allocation of costs is reserved for the final disposition of this case.

APPEAL DISMISSED IN PART AND MAINTAINED IN PART.

      . Rule 1 of this court effective April 1, 1980, and found after La.R.S. 42:1142 has been superseded by Rule 3-1.2. The rules affecting appeals from all administrative body decisions have been combined into one rule in the Uniform Rules. See comment on Rule 3-1 in Appendix B of the Uniform Rules, Courts of Appeal.


author: HALL, Judge.

text:
    Malvin SAMPSON, Plaintiff-Appellant, v. LINCOLN PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 15582-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for plaintiff-appellant.
    T.J. Adkins, Dist. Atty. by R.W. Farrar, Jr., Asst. Dist. Atty., Ruston, for defendant-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

After notice and a hearing, the appellant was removed from his position as a permanent school bus operator by the Lincoln Parish School Board for failure to keep his transfer equipment in a safe, comfortable, and practical operating condition, one of the grounds for removal specified by LSA-R.S. 17:49s. Appellant filed a petition for judicial review in the district court, which affirmed the action of the school board. On appeal to this court the appellant contends that the district court erred in affirming the school board’s decision to terminate him for the following reasons: (1) appellant was not given proper notice of the charges against him prior to the hearing; (2) insufficient evidence, mostly hearsay, was offered to establish the charge which is the stated basis for appellant’s termination; and (3) appellant’s termination was actually based on another charge not proven at the hearing.

By letter of February 4, 1982 from the superintendent of schools, appellant was suspended with pay pending a hearing on the charges contained in the letter. The specific charges listed in the letter were:

“... (1) failure to keep your transfer equipment in a safe, comfortable, and practical operating condition, (2) conduct unbecoming a school bus operator and a female student. . .. ”

On February 9 appellant’s attorney wrote the superintendent of schools requesting that the charges be made more specific and that he be furnished additional information. The attorney wrote another letter to the superintendent on February 15, again requesting additional information prior to the hearing which had by then been scheduled for February 24. The attorney also requested a closed meeting and that the testimony be recorded. By letter of February 17 the superintendent replied, advising that the additional information had been furnished to appellant and referring appellant’s attorney to the Lincoln Parish District Attorney who was representing the school board.

Appellant was represented by his attorney at the hearing. The attorney objected to the hearing going forward because he had not been furnished with the specific details of the charges as requested. The objection was overruled and the hearing proceeded. The school board called several witnesses who were cross-examined. Appellant testified on his own behalf.

At the conclusion of the hearing a school board member asked appellant’s attorney if he felt he had been given ample time or opportunity to ask all the things he wanted to ask or bring out anything that he wanted to bring out. The attorney replied that he did not want any time for any additional testimony or evidence concerning the charge relative to the operating condition of the bus but wanted the opportunity to have a handwriting expert look at the note which appellant was alleged to have given to a female student and which was the basis for the other charge.

The school board voted by a unanimous 11 to 0 vote to dismiss the appellant as a school bus driver for failure to keep his bus in a safe, comfortable, and practical operating condition. No action was taken on the other charge and the validity of the other charge is not involved in this appeal.

The standard of judicial review of a school board’s action is whether there is a rational basis for the board’s determination supported by substantial evidence insofar as factually required. The reviewing court must neither substitute its judgment for the judgment of the school board nor interfere with the board’s good faith exercise of discretion. The court’s inquiry should be limited to a determination of whether the action of the school board was in accordance with the authority and formalities of the tenure law, was supported by substantial evidence, or, conversely, was an arbitrary decision and thus an abuse of discretion. Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976); Allen v. LaSalle Parish School Board, 341 So.2d 73 (La.App.3d Cir. 1976), writ refused 343 So.2d 203 (1977).

Appellant contends that the written charge stated in the superintendent’s letter was an insufficient explanation of the nature of the charge facing him and did not constitute due process notice because it merely tracked the conclusionary language of the statute without reciting the facts on which the charge was based sufficiently to enable appellant to prepare his defense. Appellant cites Serignet v. Livingston Parish School Board, 282 So.2d 761 (La.App. 1st Cir.1973) which holds that charges tracking the statute contained in the dismissal notice do not fulfill the statutory requirements and are mere conclusions and that the notice must contain a specific recitation of facts sufficient to afford the dismissed teacher an opportunity for rebuttal.

The substance of the testimony concerning the charge for which the appellant was ultimately terminated related to appellant’s failure to have his bus repaired and available for inspection and use prior to the beginning of school and for a month thereafter, a breakdown of the bus after it was put in use, and lack of proper heating in the bus during the cold winter days shortly preceding notice to appellant of his suspension. The evidence showed that there was correspondence and discussion with appellant concerning the situation at the beginning of school and that the heater problem was discussed with him a day or two before the notice of suspension was sent to him. There is no indication that appellant was surprised by any of the specific details of his failure to properly maintain his bus brought out at the hearing. There is no showing that appellant was prejudiced by any failure to have been furnished more detailed information as to the facts on which the charge was based.

The fact that there was no prejudice and that appellant was afforded ample opportunity to prepare for and present his defense is further demonstrated by the colloquy mentioned earlier in this opinion between a school board member and appellant’s attorney at the conclusion of the hearing. Counsel specifically stated that he did not want any delay for any additional testimony or evidence in connection with the charge.

As found by the trial court, the proceeding against the appellant was conducted in accordance with the statute and appellant was not prejudiced by any lack of notice.

Appellant contends that the factual finding that his school bus was not in proper operating condition is not supported by substantial evidence and should be overturned. The essence of appellant’s argument is that the school board presented only hearsay evidence of the improper operating condition of his school bus.

Contrary to appellant’s argument, there is sufficient, substantial, competent evidence supporting the finding that appellant failed to maintain his bus in safe, comfortable, and practical operating condition. It was established that in June 1981 appellant put his bus in a repair shop for extensive repairs. Appellant was unable to pay for the repairs and, therefore, was not able to get his bus out of the shop in time for the required safety inspection by state police on July 30, at which time all of the other school buses were inspected. He did not have his bus available for inspection on August 10 when the state police set up another inspection for buses that did not pass the first inspection. Without notifying school authorities, appellant failed to pick up the children on his route on the opening day of school, August 25. The school board loaned appellant a bus until appellant got his bus out of the shop which appellant promised to do by September 8. Appellant turned in the school board bus on September 19 but when he still did not have his bus on September 21 the school board was required to furnish a bus and a driver for about five days. Finally, on September 28, appellant brought his bus to the school board grounds. The carbon monoxide machine was broken, but the bus was temporarily inspected and approved pending repair of the machine. Appellant was advised by letter that he should keep his bus operational and comfortable at all times or otherwise board action would be necessary. The following day, appellant’s bus broke down and it was necessary for the school board to send out another bus and a driver that afternoon.

In early February 1982, in the course of their investigation of the incident in which appellant was alleged to have given an objectionable note to a young female student passenger on the bus, which was the basis for the second charge, and an investigation of another incident involving a fight on the bus, school officials heard complaints from a number of students about the bus being cold and lacking heat during the cold winter days. When school officials discussed the heating matter with the appellant, he admitted that the heaters on the bus were not working properly. In view of his admission the school officials did not believe it necessary to make an inspection of the bus. At the hearing appellant testified that the three heaters on the bus were working but that when operating they caused his batteries to run down and his lights to go out. Appellant testified that it is cold in the back of the bus where the heaters, which are located in the front of the bus, do not reach. He stated that he had bought another heater around Christmas time for installation at the rear of the bus, but had not yet had it installed.

There was evidence that a number of judgments, garnishments, and wage assignments had been filed against appellant, in addition to the evidence that he was not able to timely pay for the repairs done to the bus during the summer prior to the opening of school.

In sum, the evidence established that appellant failed to keep his bus in a safe, comfortable, and practical operating condition during a substantial part of the school year prior to the time he was suspended. In spite of previous leniency on the part of the school officials and warnings that board action would be necessary if he failed to properly maintain the bus, appellant operated the bus without proper heating during severely cold winter days. Undoubtedly appellant’s failure to properly maintain his bus was due at least in part to his financial inability to do so. There was substantial evidence supporting the board’s decision to discharge the appellant on this statutory ground, and the decision was not arbitrary or unreasonable.

Appellant contends that although the school board voted to discharge the appellant on the charge relating to the operating condition of the bus, the board was improperly influenced by the second charge involved in the hearing which was “conduct unbecoming a school bus operator and a female student”. The basis of the second charge was a handwritten note which was handed by the appellant, a black man, to a young white female student who was a regular passenger on the school bus. The note is not in the record but the indication from the record is that it was of sexual or amorous content. There was considerable testimony concerning the note at the hearing. The school board sought to establish that the note was written by the appellant. Appellant denied writing the note and testified that he found the note on the seat of the bus, read it, and later gave it to the young student to whom it was addressed. The evidence at the hearing was clearly insufficient to establish that appellant wrote the note and was plainly insufficient to establish “immorality” or any other statutory grounds for removal of appellant from his position because of the note incident.

The transcript of the school board’s deliberations reveals that it was conscientious in attempting to arrive at a fair decision. The evidence concerning the charge of conduct unbecoming a school bus driver was considered, discussed, and clearly rejected by the board as being insufficient. The evidence relating to the charge of failure to properly maintain the bus was carefully considered and discussed on its own merits.

As noted by the trial court:

“The School Board indicated through its deliberations its desire to be fair to the petitioner and to arrive at a fair conclusion. Therefore, the Court specifically finds that the School Board’s conclusions from the factual findings were not arbitrary and these conclusions did not constitute an abuse of the School Board’s discretion.”

For the reasons assigned, the judgment of the district court affirming the action of the Lincoln Parish School Board and dismissing appellant’s petition for judicial review is affirmed, at appellant’s costs.

Affirmed.

      . LSA-R.S. 17:493
      “A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable and practical operating condition, or of being a member of or contributing to any group, organization, movement or corporation that is prohibited by law or injunction from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish in which the school bus operator is employed. An additional ground for the removal from office of any permanent school bus operator shall be the abolition, discontinuance or consolidation of routes, but then only if it is found as a fact, after a hearing by the school board of the parish, that it is in the best interests of the school system to abolish, discontinue, or consolidate said route or routes. All hearings hereunder shall be private or public, at the option of the operator or operators to be affected thereby. At least fifteen days in advance of the date of the hearing the school board shall furnish the affected operator or operators a copy of the written grounds on which said abolition, discontinuance or consolidation of routes is sought. The operator or operators affected shall have the right to appear in their own behalf and with counsel of their selection, and be heard by the board at the hearing. Nothing herein shall impair the right of the parties to appeal to a court of competent jurisdiction....”


author: MARVIN, Judge. HALL, Judge, PER CURIAM.

text:
    Malvin SAMPSON, Plaintiff-Appellant, v. ADMINISTRATOR, LOUISIANA OFFICE OF EMPLOYMENT SECURITY and Lincoln Parish School Board, Defendants-Appellees.
    No. 15570-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 21, 1983.
    Writ Denied Dec. 16, 1983.

      Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for plaintiff-appellant.
    T.J. Adkins, Dist. Atty. by R.W. Farrar, Jr., Asst. Dist. Atty., Ruston, for defendants-appellees.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

The plaintiff-appellant, formerly a contract school bus driver for the Lincoln Parish School Board, sought judicial review of his unsuccessful unemployment compensation claim as authorized by LRS 23:1634. The agency, appeals referee, board of review, and the district court found plaintiff disqualified for unemployment compensation benefits under LRS 23:1601 because he was discharged for misconduct connected with his employment in that he failed to follow a reasonable request of his employer, that is, to keep his school bus in a safe, comfortable, and practical operating condition. The appellant was discharged by the school board after a hearing in accordance with LRS 17:493 and the action of the school board was affirmed by the district court and by this court in a companion proceeding. See Sampson v. Lincoln Parish School Board, 439 So.2d 454 (La.App. 2d Cir.1983).

On appeal the appellant contends that there was insufficient evidence to support a finding that he failed to keep his bus in safe, comfortable, and practical operating condition, and alternatively, even if he failed to properly maintain the vehicle, there is no evidence that his failure to do so was willful, wanton, or intentional and such failure did not constitute disqualifying misconduct under the statute.

The facts leading up to the appellant’s discharge by the school board are set forth in substantial detail in this court’s opinion affirming the school board’s action in removing appellant from his position under the school bus operators tenure law which provides that an operator may be removed from his position for failure to maintain his transfer equipment in safe, comfortable, and practical operating condition. Briefly summarized, the appellant failed to have his bus available for inspection prior to the opening of school in the latter part of August 1981 and available for use for a month after school opened because he was financially unable to pay his bill at the repair shop where he had taken the bus during the summer for repairs. After he got the bus out of the shop in the latter part of September it broke down again. In the early part of February 1982 it was determined that the heaters on the bus were not operating properly and that children riding on the bus were complaining of it being extremely cold. Appellant admitted that the heaters were not operating properly and that it was cold in the back of the bus. Appellant had been warned in writing that he would face school board action if he did not keep the bus in proper condition.

LRS 23:1601(2) states that the applicant-employee shall be disqualified for benefits if the administrator finds that he has been discharged “for misconduct connected with his employment.”

Misconduct under LSA-R.S. 23:1601(2) has been defined on numerous occasions by the courts to mean an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant, 217 So.2d 514 (La.App. 4th Cir.1969). (Emphasis supplied.)

Heard v. Doyal, 259 So.2d 412, 414 (La.App. 2d Cir.1972)

Misconduct must be determined by the administrator from competent evidence on the facts of the individual case. Banks v. Administrator of Department of Employment Security, 393 So.2d 696, 697 (La.1981). LRS 17:493 requires a school bus driver to keep his transfer equipment in a safe, comfortable, and practical operating condition. The employee’s failure in this regard which we have summarized from the details in the companion case, is more than ordinary negligence, and is misconduct under LRS 23:1601(2) because it is of such a degree as to show an intentional and substantial disregard of the employer’s interest and of the employee’s statutory duty. Heard, supra.

Under these circumstances we find no error, and at appellant’s cost, we affirm the judgment.

HALL, J., dissents and assigns written reasons.

HALL, Judge,

dissenting.

I respectfully dissent.

LSA-R.S. 23:1601 provides that an individual shall be disqualified from benefits if the administrator finds that he has been discharged for misconduct connected with his employment. The employer bears the burden of proving that a discharge resulted from disqualifying misconduct. The issue is primarily a factual one to be determined by the administrator and the board of review. However, there must be legal and competent evidence to support the factual findings on which the administrative determination turns. Moreover, if the determination made does not meet a threshold test of reasonableness, it is erroneous as a matter of law. Banks v. Administrator of Department of Employment Security, 393 So.2d 696 (La.1981).

The word “misconduct” is used to connote intentional wrongdoing. Banks v. Administrator of Department of Employment Security, supra. Misconduct under the statute is a deliberate violation of the employer’s policies and rules or an intentional, substantial disregard of the employer’s interest or of the employee’s duties. Heard v. Doyal, 259 So.2d 412 (La.App. 2d Cir.1972).

In this case it is clear that the appellant’s performance in failing to properly maintain his bus was unsatisfactory to the employer and constituted legal grounds for discharge under the tenure law. However, the evidence is insufficient and does not meet the threshold test of reasonableness to establish that appellant’s failure to satisfactorily perform his duties was willful, wanton, deliberate, or intentional. Appellant’s failure to properly maintain his bus was undoubtedly due at least in part to his poor financial condition and also because of neglect and inattention, but his unsatisfactory performance did not rise to the level of misconduct as that term has been defined in numerous cases. Appellant is not disqualified from receiving unemployment benefits.

Before PRICE, HALL, MARVIN, SEXTON and NORRIS, JJ.

On Application for Rehearing

PER CURIAM.

In application for rehearing, the claimant asserts that by referring to detailed facts which were set forth in the companion case, Sampson v. Lincoln Parish School Board, 439 So.2d 454 (La.App. 2d Cir.1983), cited in the original opinion, we have exceeded the scope of our review under LRS 23:1634, and that we were in error in assessing claimant with the costs of the appeal.

LRS 23:1692 supports claimant’s latter contention. We cannot find that claimant sought or continued judicial review for frivolous reasons. Accordingly, we delete from our opinion the assessment of costs.

The facts which were detailed in the school board case essentially summarize the findings of fact recited in the opinion of the appeals referee of the defendant agency. We found that these findings are supported by sufficient evidence and we supplement our opinion by adopting the findings of fact of the appeals referee, appending those findings to this opinion, but not publishing them because they have been summarized.

Except to the extent allowed by this per curiam, claimant’s application for further rehearing is denied.

HALL and NORRIS, JJ., concur in the deletion of the assessment of costs to the claimant and dissent from the denial of a rehearing.


author: MARVIN, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant, v. Cody Cecil BEASLEY, Defendant-Appellee.
    No. 15665-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.
    Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for defendant-appel-lee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

The State appeals from a judgment awarding the owner of a fractional ½ interest $114,809 for the expropriation of that interest for which the State had deposited $57,924 as its estimate of just compensation under the quick-taking statute, LRS 48:441-448.

The State contends that the trial court erred in weighing the testimony of the experts and in not rejecting the testimony of plaintiff’s expert relative to the value of what was taken, severance damage to the remainder, and in awarding loss of rental revenue. Recognizing that a trial court has discretion in accepting or rejecting in whole or in part the testimony of expert and lay witnesses, we find no abuse of that discretion and affirm.

The State concedes that the part taken consisted of 10,935.69 square feet of land valued at $3.25 per square foot and all of the improvements on or partially on the part taken. The improvement on the part taken was an office building which the landowner had leased to three tenants. The value of this building is the real issue in this action. This facsimile of the State’s plat shows the location and pertinent detail of the property which was expropriated in part to facilitate the congestion of traffic at the intersection adjacent to the main gate of Barksdale Air Force Base.

The trial court noted:

The facts show that the property was commercial property and was used by the defendant to house commercial tenants. The intersection where this property is located is one of the most highly trafficked areas in Bossier City. The experts differ on the desirability of the location, but there is no question but that the building, which was a total loss, was in good condition. Defendant had taken an existing service station and had rebuilt the structure. According to the testimony of one of the state’s own expert ... [an expert in the cost of construction], the building was of excellent construction. [This expert,] Mr. Rockhold, said,

“And, of course, when I made my survey I could determine exactly what the type of construction was. They had taken the service station, which appeared to have been in concrete block walls, and had wrapped around it, across the front and on one end a wood frame building that was very neatly built, very nice construction. They had put simulated stone panels on the outside, they had a facier on the top, they had carpet, laid in accoustical tile, it was a wood frame building as far as I was concerned at that point, but it was of excellent construction.” * * *

... He [Rockhold] did a cost analysis for the state in November of 1978. His estimate of replacement cost for the improvements new was $179,924.00. This, he said, would be a contractor’s price and would not include other matters such as architect’s fees, if any.
... Both Mr. McNew and Mr. Fulco [the state’s experts] believe that the most accurate method of appraisal is the market data approach which enables one to determine what willing buyers and sellers are doing in the market. Mr. Montgomery [the landowner’s expert] does not disagree with that, but he believes that the market data approach is not a valid approach in this particular case because of the unique location of the property. Consequently, he valued the property at a figure between his higher cost approach figure and his lower income approach figure. It is significant that in his cost approach method, he valued the improvements, all of which were destroyed by the taking, at $177,435.54 and the state’s witness, Mr. Rockhold, estimated the cost of replacing the improvements at $179,-924.00, remarkably close estimates. * *
In the opinion of the court, all of the criteria used by the experts in this case are criteria which the court should consider in attempting to arrive at a just compensation for the defendant. The Court is of the opinion that because of the unique location of this property at the highway intersection near the West Gate entrance to Barksdale Air Force Base with its high traffic exposure, the market data approach does not have the significance it would have if there were similar physical locations which could be used as comparables. The Court does, therefore, place more weight on the other approaches than it would in other circumstances. In the cost approach, Mr. Montgomery and Mr. Rockhold arrive at similar figures in valuing the improvements and particularly since Mr. Rockhold is a witness for the state, the Court is of the opinion that the preponderance of the evidence supports the cost approach value as estimated by defendant’s expert. The income approach had Mr. Montgomery at $195,000.00; Mr. McNew at $154,100.00; and Mr. Fulco at $122,650.00. Mr. Fulco explained that his income approach was low because he thought that the building was misplaced and the property could not be utilized to the maximum, so he really discounted using this method at all. Mr. Fulco said that defendant had actually made a bad investment on this property which he said was traffic bound much of the time and had its building misplaced. He said it was all right for a service station, but not that good for other commercial use. But according to the evidence, the defendant was using the property for the purpose for which he acquired it, namely, renting it to commercial tenants, without any problem in obtaining tenants up until the announcement by the state of its construction plans at that intersection. * * *
Considering all of the evidence, giving consideration to the several methods of valuation used by the experts, the Court is of the opinion that the evidence supports the conclusion that a just valuation of the property taken is the sum of $185,-000.00, one-half of which is attributed to the defendant. The Court is also of the opinion that the remaining property is damaged by the severance because of its reduced size and restricted access. Experts for the state testified that the severance damage was slight, if any, and the defendant’s expert claimed that the taking effectively destroyed the remainder. In the opinion of the Court, the evidence establishes that the remaining property does have some commercial use, although the use has been severely curtailed, and that its value has decreased in the amount of fifty percent by the severance. Before the taking, the 8,899.06 square feet which remain was valued at $3.25 per square foot or a total value of $28,-921.94, defendant’s one-half being $14,-460.97. After the taking, with severance damage amounting to fifty percent, the defendant’s one-half interest is valued at $7,230.48 which is also the amount of his severance damages.
The Court is also of the opinion that the preponderance of the evidence establishes that defendant did in fact lose the sum of $15,079.00 in rent income from the first announcement by the state of the taking to the date of the taking.
* * * * * *
Accordingly, there should be judgment herein in favor of the defendant in the total amount of $114,809.48 less the deposit of $57,924.50, or a total amount of $56,884.98, plus legal interest.

The trial court’s value of $185,000 is lower than the landowner’s expert appraisal of $225,000 and is higher than the appraisals of the State’s experts (approximately $120,-000). The landowner’s appraiser initially considered the remaining property to have been effectively “lost” by the partial taking and, when pressed, would assign only a $1 per square foot value to the remainder after the taking. The State’s experts assigned, respectively, $0 and $2,892 as severance damage to the remainder. The trial court found the remainder to have a value after the taking of $1.625 per square foot (½ of the $3.25 per square foot value before the taking).

The State complains that the trial court erred in allowing the landowner the loss of rental revenue because this claim was not established to a legal certainty and by a preponderance of the evidence. The State argues that it should not have to pay the landowner for this loss because the landowner voluntarily reduced the rent to induce the tenants to stay in the building until the actual notice to vacate was given and voluntarily allowed the tenants to move to other available rental properties instead of holding them to, and enforcing against them, their lease obligations. We find no error in this respect.

The State announced in late 1976 that it would undertake the construction project. The taking occurred in December 1979 and the remaining tenant was notified by the State to vacate no later than April 2, 1980. The other tenants vacated after the announcement and before the taking and the landowner showed that his rent for the period between January 1977 and December 1, 1979, was less than before the announcement. In a similar situation where the expropriator contended that the landowner-lessor should not be entitled to recover because his tenants had “breached” their leases, we recognized that the landowner was simply seeking recovery of a loss occasioned by the contemplated expropriation proceeding. We held that LSA-Const. Art. 1, § 4, required the owner to be compensated to the full extent of his loss. We said:

The record in the case under consideration establishes that the defendant lost rental income because of the City’s action, or inaction, incidental to the expropriation proceeding. Denying recovery of that loss would violate the constitutional mandate that the owner “be compensated to the full extent of his loss.” Further, contrary to the ruling in Constant, he would not “remain in equivalent financial circumstances after the taking.”
For these reasons we conclude that the trial judge was correct in making this award of lost rentals to the defendant and properly acted within his discretion in computing the amount due, based on the period that elapsed between the visit of the City’s appraisers to the property in August, 1976 and the filing of the expropriation suit in April, 1978.
City of Shreveport v. Bernstein, 391 So.2d 1331, 1334-35 (La.App. 2d Cir.1980)

In Bernstein, supra, we also recognized that the trier of fact is not required to accept or reject the testimony of each witness in toto. The trial judge is not required to accept the precise amount of any expert. He may instead make an award in an amount to which no expert testifies since the trial court is empowered to evaluate the weight to be given to each witness’ testimony, as well as to make factual determinations as to which of the facts relied upon by the witnesses relevantly influences market value.

Market value may be calculated by the comparable sales method, by the income capitalization, or by the replacement cost less depreciation method. M. Dakin & M. Klein, Eminent Domain in Louisiana, 30-31 (1970). Compare City of Shreveport v. Standard Printing Co., 427 So.2d 1304 (La.App.2d Cir.1983), writs granted, where all of the building was also taken.

For reasons assigned by the trial court, which we adopt and summarize, and at appellant’s cost, the judgment is affirmed.


author: PRICE, Judge.

text:
    Thomas A. BERRY, et al., Plaintiffs-Appellants, v. CITY OF MONROE, Defendant-Appellee.
    No. 15666-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.

      Pharis & Pharis by F. Jean Pharis and Fred A. Pharis, Alexandria, for plaintiffs-appellants.
    Thomas V. Gardner, Jr., Monroe, for defendant-appellee.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   PRICE, Judge.

This suit was originally instituted against the city of Monroe by the father of a minor child for damages arising from personal injuries sustained when his 12-year-old daughter collided with a support column in the nocturnal exhibit building at Louisiana Purchase Gardens and Zoo. Plaintiff’s minor daughter has, since the time of trial, attained the age of majority and was substituted as proper party plaintiff for her personal damages. The trial court dismissed plaintiff’s claim and this appeal ensues. The issue is whether the trial court erred in finding plaintiff’s claim barred by victim fault or contributory negligence.

Rhonda Berry was injured in 1977 during a visit to the zoo with a church group from Pineville. She and several others of the group took a tour of the nocturnal exhibit building housing animals which are normally active at night and at rest during the daylight. For this reason, reserved lighting is used in the building to create the illusion of nighttime so that patrons may view the animals in an active state. After exiting the building with the others, Rhonda and a friend, Susan Holzenbach, decided to go through the exhibit again by themselves. On this second trip through the building, the girls noticed that a three-legged leopard that they had seen on the previous tour was not visible in his cage. Rhonda jokingly posed to Susan the idea that the animal had escaped his cage and the two of them ran for the exit. Rhonda testified she had run approximately ten steps on each foot when she collided with a large support column which she had failed to see in the darkness. She hit the column with the left side of her head. The blow caused bruising and swelling of her left eye and the surrounding area which persisted for approximately three to four weeks after the accident.

Approximately nine weeks after the collision with the support column, Rhonda suffered a continuous series of epileptic seizures which her doctors concluded were more than likely caused by the head injury. She was placed on medication to prevent further seizures. The treatment has been successful and she has not experienced a seizure since that time.

The trial court denied recovery on the basis of his finding that, whether the applicable standard is negligence or strict liability, Rhonda was guilty of victim fault sufficient to bar recovery under either theory. We agree with plaintiff’s contention that this holding was in error and reverse.

The owner of a facility inviting the general public to visit its premises has a duty to exercise reasonable care to maintain the premises in a reasonably safe condition. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Weaver v. Winn-Dixie of Louisiana, Inc., 406 So.2d 792 (La.App. 4th Cir. 1981). The lighting in the nocturnal exhibit building was planned for the purpose of providing enough light for patrons to view the animals, while keeping it dark enough for the animals to be active during viewing hours. As part of its general duty, there is a duty upon the city in maintaining this nocturnal exhibit to provide adequate lighting to protect the visiting public from colliding with objects within the building. Furthermore, consideration of the fact that amusements such as the zoo hold a special attraction for children should be elementary to the determination of what precautions are reasonably necessary for the safety of the zoo’s patrons in a darkened building. Based upon the facts established in the record, we find the defendant breached this duty.

The building is constructed in a figure eight design with a support column in the center of each of the two circular sections. The columns are a dark mahogany color and each has a bench eight to ten inches in width around it. The exhibits are set into the walls of the building and each cage contains overhead ultraviolet lighting consisting of white bulbs with red covers. This was the only illumination in the building at the time of the accident with the exception of a light on each side of the walls in the middle of the structure. The single door serving as both entrance and exit was black. The support poles had no lights or reflectors, nor were there any signs warning of their existence.

Mr. Ray Dunn, a lighting expert who visited the building after the accident testified at trial to the lack of illumination in the building, estimating it at less than one footcandle. Industry standards as per the Southern Building Code require at least a lighted exit sign in such low illumination, which he felt would have silhouetted the posts, making them more visible. He stated that a typical consulting engineer would have recommended such a marking even if not specified by industry regulations.

It is obvious that the areas in which the columns are located were at that time the darkest areas of the building, being in the center farthest from the exhibits. Both they and the exit door are very dark in color as well. The zoo officials must have been aware that the great majority of the traffic through the building would be children, who are generally impulsive and unobservant. The ease with which the columns could have been made visible to even the unwary by lighting or reflectors, or padded to eliminate the risk of injury, without affecting the utility or the nocturnal nature of the exhibit leads this court to conclude that the failure to take such precautions constitutes a breach of the city’s duty to zoo patrons.

The next question for our resolution is, having established the breach of a duty, was that breach a legal cause of Rhonda’s accident, i.e., does the city’s duty to provide adequate lighting in this building encompass the risk that a twelve-year-old child might negligently run into this pole? We believe the city should have anticipated such an occurrence, considering the recognized propensity of children for playful conduct and impetuous reactions, particularly in a recreational setting such as a zoo. It is certainly reasonably foreseeable that a child might run in the building. It is likewise foreseeable that these dark support columns would go unnoticed by a child whose attention is focused either on the exhibits or his companions. It is our conclusion, then, that the city’s duty with respect to lighting in the building embraces the risk of a child such as Rhonda carelessly colliding with this column. Thus, the city’s failure to provide lighting adequate to prevent the injury of a child in such a clearly predictable manner was a legal cause of the accident.

The defendant argues that it should be absolved of liability because Rhonda was contributorily negligent in failing to see the support column. Both Rhonda and Susan testified that neither saw the post until Rhonda collided with it. The trial court held that the accident would not have occurred had she been attending to where she was going.

However, the city’s duty to provide adequate lighting in this exhibit building is designed not only to protect prudent members of the visiting public, but even moreso to prevent injury to the unwary or inattentive young patron who would be less likely to keep to the unobstructed pathway through the building. The city must be cognizant of the limited judgment possessed by children and their propensity toward impulsive behavior in fulfilling this duty.

Where, as here, the possibility that a child will act carelessly or thoughtlessly is one of the foreseen risks which imposes upon the defendant the duty to provide adequate lighting to prevent mishaps such as the instant one, such conduct cannot at the same time excuse the breach of that duty. See Outlaw v. Bituminous Insurance Co., 357 So.2d 1350 (La.App. 4th Cir.1978), writ denied 359 So.2d 1293 (La.1978). Thus, the city may not be relieved of liability for this breach of duty by pleading Rhonda’s contributory negligence.

As a result of this accident, Rhonda’s left eye was severely bruised and swelled shut. Some of the discoloration spread to her right eye as well, and the testimony indicates it took more than three weeks for her eyes to heal completely. Then nine weeks after the accident she experienced a series of severe life-threatening convulsions diagnosed as, in laymen’s terms, an epileptic seizure which her doctors have attributed to her head injury. We find that a general damage award of $25,000 would be proper to compensate Rhonda for the pain and suffering, embarrassment, fear, and anxiety stemming from both the black eye and the seizure.

We note particularly that, while further seizures have been prevented by medication, there can be no certainty that Rhonda will not have another seizure. Dr. Tar-do, Rhonda’s neurologist, testified that the social stigma and personal trauma of such seizures, as well as their life-threatening nature in some cases, warrant continuing the medication to prevent seizures until Rhonda reaches her childbearing years. At this time, the medication will probably be discontinued due to a slight possibility of birth defects and the chances of another seizure will be increased. While mere speculation of such an event cannot provide the basis for an award, the anxiety produced by the possibility of another seizure is one of the compensable items we include in our award.

We award the amount of $6,343.08 to Mr. Berry for medical expenses incurred in connection with this incident up through the time of trial. We also allow $506.25 for future medical expenses and $440 travel expenses for annual trips to Ochsner Clinic for testing which will be necessary as long as Rhonda is on the medication, and $364.65 for the cost of medication.

We reject the plaintiffs’ claim for contingent medical expenses as completely speculative and the claim for Mrs. Berry’s lost wages since the evidence fails to prove the necessity for her quitting work to care for Rhonda.

Finally, we assess the following as court costs:

Expert Witness Fees:
Dr. Tardo $200.00
Dr. Moore 250.00
Ray Dunn, Electrical Engineer 500.00
Dr. Ronald Fryer 100.00
Court Reporter Fee 231.15
TOTAL $1,281.15

For the reasons assigned, the judgment appealed is reversed and it is ordered, adjudged, and decreed that there be judgment in favor of plaintiffs Thomas A. Berry and Rhonda Berry and against defendant City of Monroe in the following amounts:

RHONDA BERRY for the sum of $26,-310.90, together with legal interest thereon from date of judicial demand until paid;
THOMAS A. BERRY for the sum of $6,343.08, together with legal interest thereon from date of judicial demand until paid.

All costs of these proceedings, including this appeal, are assessed to defendant-ap-pellee.

REVERSED and RENDERED.


author: REMY CHIASSON, Judge Pro Tempore.

text:
    Terry COLEMAN, a minor, Diana Coleman, wife of/and Kenneth Coleman v. Gerald BALLANCO, M.D., Rothschild Pediatric Group, Katz and Besthoff Drugs, Inc., John Doe, Hartford Insurance Group, ABC Insurance Company, UVW Insurance Company and XYZ Insurance Company.
    No. CA 0675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1983.
    Sylvia Johnson Aaron, The Aaron Law Firm, Ltd., New Orleans, for plaintiffs-appellants.
    Edward J. Rice, Jr., Donna L. Yukna and Rebecca A. Bush, Adams & Reese, New Orleans, for defendants-appellees.
    Before BARRY and WARD, JJ., and REMY CHIASSON, J. Pro Tempore.
   REMY CHIASSON, Judge Pro Tempore.

This is an appeal from a judgment of the district court, rendered in accordance with a jury verdict, granting to Kenneth Coleman on behalf of his minor son, damages in the amount of $300.00 for past medical bills. An additional award of $2,000.00 was made to the minor son, Terry Coleman. From that judgment, which we affirm, plaintiff appeals seeking an increase in the amount awarded.

On September 14, 1978, Terry Coleman was treated by Dr. Gerald Ballanco of the Rothschild Pediatric Group for symptoms of viral intestinal flu. Dr. Ballanco prescribed WANS No. 2 suppositories, however, he prescribed an adult’s dosage of 100 mg. instead of the child’s dosage of 30 mg. Liability was stipulated and the case was tried solely on damages.

On appeal, plaintiffs argue that the amounts awarded are so low as to constitute a clear abuse of discretion. We do not agree.

On September 20th, Terry Coleman was admitted to Children’s Hospital due to symptoms described as “kind of drunk-acting ... weak and clumsy.” He was observed overnight and discharged the next day with a clean bill of health.

Sometime later the child began exhibiting symptoms of green stools, hair loss, stomach aches, pains, fatigue, allergies, and viral gastroenteritis. He was treated by a number of physicians for these various symptoms.

At trial, the expert testimony could not indicate a causal link between the WANS 2 suppositories and the later symptoms. In fact, the physicians presented testified that Terry’s symptoms were the direct result of his allergies and were unrelated to the WANS suppository.

The jury apparently agreed, awarding the cost of the overnight stay in Children’s Hospital ($177) plus a follow-up bill ($25), the cost of the prescription ($6), and the costs of the Rothschild Pediatrics Group bill ($69), or approximately $300 in medical bills.

On appeal, the standard to be applied is whether the amount awarded constitutes a clear abuse of discretion. In the instant appeal, no such clear abuse exists.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . Reck v. Stevens, 373 So.2d 498 (La., 1979).


author: COLE, Judge.

text:
    Carolyn WELLS v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. Frances FOSTER v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. Shirley THOMPSON v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. Shirley THOMPSON v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY.
    Nos. 14691-14694.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.
    John R. Rarick, Jesse L. Means, Jr., St. Francisville, for appellants.
    Betty Jean G. Ray, La. Dept, of Justice, Baton Rouge, for appellee.
    Laura D. Holmes, Civil Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner Director, Dept, of State Civ. Service.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

These cases concern three employees of the commissary at Louisiana State Penitentiary at Angola who were terminated from their positions due to allegations they had confessed to taking cigarettes from the commissary without paying for them. The dismissals took place in May of 1979 and a lengthy procedural history followed. The employees appealed their dismissals, claiming they had taken only “complimentary” cigarettes from the commissary. A hearing was held before the Civil Service Referee in March of 1980 and an opinion was rendered by the Commission in March of 1981. The gist of the opinion was that the Commission did not find the employees’ testimony (that they took only “complimentary” cigarettes) to be credible and therefore the Commission upheld their dismissals.

The employees filed an appeal to this court and we noted in our decision, Wells v. Department of Corrections, Etc., 417 So.2d 377 (La.App. 1st Cir.1982), the opinion of the Commission did not reflect the Commission had in fact read the transcript of the proceedings and this omission implied the matter may have been decided solely by the referee. Under La. Const, art. X, § 12, the Civil Service Commission has the exclusive power and authority to “hear and decide” all removal and disciplinary cases. We cited Goudeau v. Department of Public Safety, 349 So.2d 887 (La.App. 1st Cir.1977), writ denied, 351 So.2d 165 (La.1977), wherein it was held the members of the Commission must read and examine the transcript as made before the referee and that the opinion must so indicate. Particularly, when the determination turns upon credibility of witnesses, the referee’s evaluation of the testimony must be made known to the Commissioners and reflected in the record. Therefore, the case was remanded to the Commission for proceedings consistent with those observations.

The Commission sought a rehearing, arguing this court had ignored a recent Civil Service rule change which no longer required the testimony to be transcribed in every case. See Rule 13.20(b) and (c). This court granted a rehearing, but ultimately reinstated the original opinion. (See Wells, supra.) We concluded the rule did not alter the Goudeau rationale or the constitutional requirement that the Commission “hear and decide” all cases. The fact that under the new rule the transcript could remain in oral form, had no effect whatsoever. The Commission sought writs to the Supreme Court, which were denied. See Wells v. Department of Corrections, Etc., 420 So.2d 983 (La.1982).

The Commission then reissued its opinion on February 11, 1983, wherein it acknowledged that the commissioners had read and discussed the entire record. Otherwise, the opinion was the same as the original one, i.e., the employees’ discharges were upheld. The employees then appealed.

The pivotal fact issue in this case is the meaning of appellants’ answers to a single question on a Psychological Stress Evalua-ter test (also referred to as a “voice stress” test). The three appellants were told to appear at the Louisiana State Police headquarters on May 9, 1979, to take the test. The test arose from an investigation of certain illegal activities at Angola. Appellants were accompanied by their attorney, Jessie Means, who was present with them while they each took the test. (Mr. Means was either present in the testing room or observed the testing through a one-way mirror from an adjacent room.) Prior to the test, the test administrator, Trooper Randall Barrow, explained each question to the appellants. He told them they would be asked if they had ever taken cigarettes from the commissary without paying for them. They were given ample opportunity to ask questions concerning the test. In the actual test, the above question was in fact asked. All three appellants answered “yes” to the question. Shortly thereafter appellants received letters informing them they were being terminated due to their confessed taking of cigarettes. The issue explored at the hearing was whether the appellants meant they had “stolen” cigarettes from the commissary, or whether they were stating simply they had, in fact, literally “taken” cigarettes without paying for them, although those cigarettes were complimentary ones left for their consumption by the cigarette sales representative.

Certain facts were established at the hearing. First, it was proven that salespersons representing the various tobacco companies did leave complimentary cigarettes at the commissary to be smoked by the employees or any other interested person. Ms. Thompson testified she had been in charge of ordering cigarettes and the various sales representatives would come to the store approximately once a month. On many occasions they left her three complimentary packs of cigarettes for six purchased cartons. Dennis Dahmer of the Phillip Morris Tobacco Company testified it was company policy for the salesman to leave such samples. Don Kimball, a former administrative assistant at Angola, testified he had been the supervisor of the store manager for two years and was aware of the fact the cigarette salespersons left the complimentary cigarettes.

Second, it was established all three appellants received the complimentary cigarettes from time to time. Ms. Thompson, as the store employee in charge of the cigarettes, had access to whatever samples were left. She, on occasions, shared these samples with the other two appellants. Ms. Wells testified she had received the cigarettes twice during the year she worked at the snack bar and Ms. Foster said she had received them “not very often.”

Third, although not mentioned in the Commission’s opinion, it was proven all three appellants were advised by their attorney, Jessie Means, to answer the questions on the stress test “to the literal truth.” All three testified Mr. Means had advised them that if asked about taking cigarettes from the commissary, they were to answer yes, even though they knew the cigarettes were complimentary.

One factor brought out at the hearing was that this investigation began initially as a probe into allegations of drug-dealing between prisoners and employees at Angola. During the course of the investigation certain facts were uncovered concerning thefts of a large magnitude by prison employees. The matter concerning these three appellants was uncovered accidentally. Paul Phelps, Secretary of Corrections, and Sue Rouprich, an attorney for the Department of Corrections, both testified as to this. Further, Mr. Phelps testified he had met with the Fosters a few days after the voice stress test was administered. At this point it had been determined the three appellants were going to be terminated for their “confession” of stealing cigarettes. Phelps stated Ms. Foster’s husband had protested, alleging he and Ms. Foster knew of serious offenses committed by other employees. Mr. Phelps told them at that time if they cooperated with the Department and provided information concerning these other offenses, the official action of termination would be reconsidered and a lesser penalty imposed.

Copies of two letters addressed to Mr. Means, from Sue Rouprich, were introduced as exhibits. In one letter Ms. Foster was promised a lessened penalty of a three-day suspension in return for her cooperation and in the other Ms. Thompson was promised to be considered for re-employment in another position at the prison. Although there was no letter concerning Ms. Wells she testified she too had been offered a “deal,” as relayed to her by Mr. Means that if she provided information about other employees she would not lose her job. All three appellants testified they declined the offer because they knew nothing about the alleged criminal activities of other employees at Angola.

The Commission stated in its opinion it found simply the appellants testimony to lack credibility. The Commission concluded the appellants had ample opportunity to ask questions concerning the test and could easily have explained their situation regarding the complimentary cigarettes. The Commission therefore felt the defense of complimentary cigarettes was an “ex post facto rationalization.” The conclusion of the Commission was that the appellants had in fact admitted to taking cigarettes from the commissary and these admissions included cigarettes other than complimentary ones.

Concerning the Commission’s conclusion about the “ex post facto rationalization,” the record contains conflicting testimony as to whether or not there was a discussion of the complimentary cigarettes prior to the time the test was given. Each appellant testified she did not raise the issue to Officer Barrow prior to the test, although she was given ample opportunity to do so. At one point Shirley Thompson elaborated by saying although she never mentioned the matter directly to Officer Barrow, she had discussed it with Mr. Means and another person while Officer Barrow was present in the room. Mr. Means testified he had talked about the matter with Officer Barrow, as will be discussed more fully below. Officer Barrow did not mention any conversation with Mr. Means and stated specifically that none of the appellants had said anything to him about complimentary cigarettes. He testified if they had done so, he would have rephrased the question so as to remove any ambiguity from it. Officer William Cox, also of the state police, testified he heard one of the appellants ask Officer Barrow about the complimentary cigarettes.

In light of the testimony of these persons, there was ample evidence the matter of the cigarettes was mentioned (although perhaps not to Officer Barrow) prior to the test being given. This satisfies us the Commission erred in concluding the complimentary cigarette matter was raised only as an after-the-fact excuse.

Concerning the Commission’s conclusion that the appellants would surely have spoken directly to Officer Barrow about the complimentary cigarettes, we find this is not necessarily the case under the circumstances. Although it may be tempting to so conclude, it must be noted these appellants undoubtedly experienced a great deal of apprehension caused merely by the fact they were called in from Angola to Baton Rouge for questioning about suspected thefts. At least one of the appellants had only an eighth grade education and would understandably be a bit intimidated by the accusation and by the procedure of taking the stress test.

Another factor which cannot be overlooked, and was well established at the hearing, is that all three appellants were informed (by Berl Cain, who was representing Mr. Phelps from the Department of Corrections) they would be fired if they refused to take the test or if they failed to answer each question truthfully. This certainly caused a great deal of anxiety. And finally, the most significant fact revealed at the hearing was that their own attorney advised them to answer each question “to the literal truth.” He even went so far as to advise them to answer affirmatively the specific question concerning the taking of cigarettes because he believed a negative answer would show up as a lie.

The attorney, Jessie Means, testified at the hearing concerning the advice he had given his three clients. He said he had asked Officer Barrow if the question was, “Have you taken cigarettes without paying for them” and his clients had taken complimentary cigarettes, and therefore answered no, if that answer would show stress. Officer Barrow had informed him it would possibly show stress. Concerning the specific question at hand, Means testified as follows:

“My clients, the three appellants here, had already told me as to the matter of the complimentary cigarettes. And, you know, I had already raised these objections about the cartons and them being picky and so forth. I said, ‘Well, if they find any sign that you’re lying on the test, they’re still going to fire you. So, you know, use your own judgment and my advice is for you to answer that question, “Have you taken cigarettes from the commissary without paying for them.” ’ — my advice to my clients was to answer yes to that question because Berl Cain had said, ‘If you are caught lying, you will be fired.’ And Trooper Barrow had told us that that question could possibly show a discrepancy if they answered no under the circumstances. And that’s what happened.”

When the attorney was asked whether or not he had instructed the clients to answer the questions literally he said, “I told them, ‘Answer as to the literal' truth.’ That’s right.”

The Commission made no findings as relating to the testimony of the attorney. All witnesses are presumed to be telling the truth, therefore, since his testimony was uncontradicted on this subject, we have no reason to doubt his veracity. See La.R.S. 15:432.

Although the Commission apparently found no import in Mr. Means’ testimony, we find it to be of utmost importance and it is this testimony, more than any other, which precludes us from affirming the findings of the Commission. Since we find as a fact appellants were simply following the advice of their counsel in answering the question affirmatively, it would be completely unjust to penalize them for their (his) error in judgment. All three appellants testified unequivocally at the hearing they had never taken cigarettes other than complimentary ones and had answered the question “yes” strictly because their attorney had so advised them and also because they had been told they would be fired if they were found to have answered a question untruthfully. These factors, coupled with the fact that their attorney warned them they must answer to the “literal truth” or suffer a chance of having the test show stress, left the three appellants in a rather peculiar “Catch 22” position. They acted as instructed: they did not refuse to take the test, they answered the questions truthfully, and still they lost their jobs. Under these circumstances, we do not find it so incredible that they failed to explain their position concerning the complimentary cigarettes. They simply followed the advice of their counsel in what for them was obviously a very intimidating situation. Since the appellants knew Mr. Means was aware they were talking about complimentary cigarettes, yet he still instructed them to answer affirmatively, we can understand why they might have felt it unnecessary for them to clarify the situation any further.

At the hearing the referee questioned the attorney why he took no steps to remedy this confusing situation. Since Mr. Means knew his clients had taken complimentary cigarettes and he knew the question concerning the cigarettes had to be answered literally, the referee asked why he failed to act to have the question rephrased. Mr. Means answered, “It just wasn’t done.” He explained there was a great deal of animosity between him and Officer' Barrow and communications had “broken down.” He said because of his anger toward Officer Barrow at that time, “I wasn’t even talking with him.”

We note too there was not one shred of evidence brought forth at the hearing which corroborated the charges of stealing cigarettes. The sole basis of the termination was the answer to, what in these circumstances was, a rather ambiguous question on a voice stress test. The episode must be viewed in its entirety. This includes the intimidating circumstances of the stress test, the problems of answering the question “literally,” the unwavering advice of counsel to answer the question affirmatively, and the willingness of the Depart-ment to lessen the penalties in exchange for information. When so considered, it is clear the appointing authority has simply failed to prove by a preponderance of the evidence these employees in fact stole cigarettes from the commissary. See La. Const, art. X, § 8(A); Dept. of Culture, Recreation & Tourism v. Peak, 423 So.2d 718 (La.App. 1st Cir.1982).

Appellant Shirley Thompson filed a separate appeal wherein she prayed that should she be successful in her main appeal (of being reinstated to her position), she desired to be reinstated not as a cashier at the commissary but as an L.S.P. cadet, a position to which she had been transferred immediately prior to her termination. It was stipulated by counsel for the appointing authority at the hearing that should Ms. Thompson be successful in her appeal, she would be reinstated to her position as an L.S.P. cadet.

For these reasons the decision of the Civil Service Commission is hereby reversed. Appellants Carolyn Wells, Frances Foster and Shirley Thompson are hereby reinstated to their former positions of Cook II, Cook I, and L.S.P. cadet, respectively, with back pay. All documents concerning the termination of these appellants are to be removed from their respective personnel files.

REVERSED.

      . Ms. Wells and Ms. Foster were employed as Cook II and Cook I (respectively) at the snack bar adjacent to the prison store. Ms. Thompson was employed as a cashier at the store.