author: KNOLL, Judge.

text:
    Dennis John RICHOUX, et al., Plaintiffs-Appellants, v. Clement HEBERT, et al., Defendants-Appellees.
    No. 83-192.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 16, 1984.

      Richard C. Broussard of Domengeaux & Wright, Lafayette, for plaintiffs-appellants.
    Ronald J. Bertrand, Rayne, Albert L. Boudreau, Jr., Gordon P. Sandoz, II, Jan P. Rowe, Abbeville, for defendants-appellees.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

In this personal injury action, Dennis Ri-choux brought suit on behalf of his minor son, Brandon, then age three, who was injured when a horse, racing at Cajun Downs Racetrack, came over the rail and fell on him, resulting in serious injury. The trial judge found negligence on the part of Onil Boudreaux, as operator of the track, and Virgil Vice, owner of the horse, and these two defendants were held liable in solido to the plaintiff in the sum of $100,000 plus medical expenses. The trial judge also found the following defendants free from fault: Clement Hebert, owner of the racetrack; and Larry Begnaud, puller of the starting gates.

From the aforementioned judgment, the plaintiff has perfected the present devolu-tive appeal alleging the following specifications of error: (1) The trial court erred in finding Clement Hebert was not the operator of the track; (2) The trial court erred in finding Clement Hebert was not vicariously liable for the torts of Onil Boudreaux and Larry Begnaud; (3) The trial court erred in finding that Larry Begnaud was not negligent in opening the starting gates in view of the position of the horse (“Speedy Bar Jack”) and his jockey; (4) The trial court erred in finding that the race track was not vested with vices in its original construction and furthermore, the court erred in not finding Clement Hebert liable as designer, builder, owner and maintainer of the track; and (5) The trial court erred in awarding general damages of only $100,000.

The procedural history of the case is as follows: Plaintiff filed suit wherein named defendant was Clement Hebert, owner of Cajun Downs, who was alleged to be negligent in the operation of a dangerously constructed track, releasing the horses before they were ready, failing to keep spectators from entering a dangerous area, and in entrusting the gate opening operation to an inexperienced employee. Hebert third partied Virgil Vice, the owner of the horse which struck the child, alleging that as owner of an animal he is liable for any damages caused by that • animal. Vice made plaintiff Dennis Richoux a third party defendant, alleging that he was negligent in failing to adequately supervise his minor son. Vice also alleged plaintiff assumed the risk of injury to his son. Plaintiff thereafter amended his petition to name Vice a defendant, claiming he was negligent in starting his horse in the fashion he did. Vice, in turn, made Hebert a third party defendant, making the same allegations originally made by Richoux. Hebert made plaintiff a third party defendant on the basis of the same negligence alleged by Vice in his third party petition against plaintiff. Vice then amended his petition to name Onil Boudreaux, as operator of the track, and Larry Begnaud, the puller of the gates, third party defendants. In answer Boudreaux claimed the accident was caused by either the sole or concurring negligence of Richoux, Vice, Hebert, and/or Begnaud. In a separate action, Ri-choux filed suit against Boudreaux and Begnaud, claiming that their negligence in operating the track in a hazardous fashion, opening the gates before the horses were prepared, operating the starting gates in a hazardous fashion, and in otherwise operating the track to allow horses to run into the spectator area caused the damages complained of. Not named as defendant was, inter-alia, the jockey involved, Shane Sellers. The cases were consolidated for trial.

Cajun Downs is what is commonly known as a “country” race track, or “bush” track. It is a straight track approximately one-half mile in length. It can accommodate six horses although at the time of the accident only four horses were racing. The railing is made of 2¾⅛ inch drill pipe with a gap between the starting gates and railing used to get the horses onto the track and into the starting gates. This gap is closed before a race by means of a flexible pipe approximately 1 lh inches in diameter.

Halfway down the track is a concession stand operated by Hebert.

On Sunday, March 8, 1981, Dennis Ri-choux took a number of his children to Hebert’s “Cajun Downs” racetrack. Many children attend the races with their parents, and they generally play in an area to the side of the track near Hebert’s house, although they are not restricted to this area. Richoux left his children to play with the others, and began watching the races. Some time later, he left the track for 5-10 minutes, and then returned. He walked toward the house, saw his children, and then returned to his truck, which was parked near the starting gates, for cigarettes. Brandon and another of Richoux’s children apparently followed him.

Meanwhile, a race was about to start. Four horses had entered the starting gates, including Vice’s “Speedy Bar Jack”, and the sliding pipe gate had been closed. Something was apparently wrong, for the horses were taken out and reloaded into the gates a second time. The race was apparently delayed when one of the assistant starters was injured. Richoux stopped to watch from a position near the back of the starting gates, while the two children continued to walk back towards the house. The race started, and the horse in the gate nearest the left rail (“Speedy Bar Jack”) immediately veered to the left, went over the sliding pipe, and landed on Brandon, who was some five or six feet behind the rail, away from the track. Brandon had been struck in the head by the hooves of the horse. When his father picked him up, he was motionless, his eyes rolled back and portions of his brain protruded through the shattered skull.

Brandon was rushed to the hospital where his neurosurgeon diagnosed a compound depressed skull fracture with cortical lacerations. Treatment followed. He experienced temporary blindness, a possible seizure, impairment of the hands and legs and a distended abdomen. Subsequently, Brandon was released from the hospital with instructions to take anticon-vulsant medication. A cranioplasty later became necessary and was eventually performed at a charitable hospital in Texas. Dr. Rivet, Brandon’s neurosurgeon, diagnosed permanent brain damage, however, due to the child’s age, he was unable to predict the degree of any learning disability-

In addition, Brandon was placed in traction for fracture of the left femur and was later placed in a body cast. He has also seen a pediatric psychiatrist, due to emotional problems related to confinement, and another physician specializing in physical medicine and rehabilitation. As a result of his brain injury, his doctors recommend he wear protective head gear when engaged in potentially traumatic activity and he continues to take Phenobarbital to prevent seizures. Other physical disabilities continue, including walking with a limp.

As aforementioned, all defendants alleged that Dennis Richoux was negligent in allowing his son Brandon to wander into the spectator area unsupervised, and that this negligence caused the accident. The trial court rejected this defense, noting that the child was within a normal spectator area, several feet from the rail. Operator Onil Boudreaux contends that, as host, he is not liable to an invitee for the injury because the peril was apparent and the plaintiff, in the exercise of reasonable care, should have observed the danger and saved his child from it. However, the trial judge found otherwise, there appears to be no clear error in his decision, and moreover, none of the defendants have appealed or answered plaintiffs appeal. Nevertheless, we believe the plaintiff assumed only those risks ancillary to viewing horse racing in a manner consistent with the track’s policy and, furthermore, the danger posed by the operation and maintenance of the track was not foreseeable.

Concerning the responsibility of Virgil Vice as the owner of the horse that injured the child, the trial judge applied the law as set forth in Holland v. Buckley, 305 So.2d 113 (La.1974). In that case it was held that owners are strictly liable for harm caused by their animals and liability may only be escaped by a showing that the harm resulted from some independent cause not imputable to the owner such as fault of the victim, fault of a third person, or a fortuitous event. La.C.C. Art. 2321. To exonerate the animal owner from liability, independent cause must be the sole cause of the damages. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). The record indicates Vice knew of the dangerous propensity of “Speedy Bar Jack” to veer to the left, cf: Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966); Winant v. Rogers, 256 F.Supp. 1020 (La.D.C.1966); Liner v. McEnery, 176 So.2d 786 (La.App.2nd Cir. 1965); Roberts v. Hartford Acc. & Indem. Co., 394 So.2d 696 (La.App.3rd Cir.1981). The trial court concluded there was no independent cause in this incident which could be deemed to be the “sole cause” of the damages, and accordingly, Virgil Vice was held liable. This ruling is also final.

Another issue presented at the trial court was whether Vice’s horse was in a position to start the race when the gates were opened or whether Larry Begnaud, as gate opener was negligent in opening the gate before all the horses and their jockeys were in a proper position to start the race. The trial court was of the opinion that it is ultimately the gate puller’s responsibility to ascertain that the horses are indeed in a position to safely start the race and found as fact that “Speedy Bar Jack” was in a reasonable starting position. In reaching this result the trial judge noted that the evidence on the point of whether the horse was ready to start was at best conflicting and contradictory, however, the preponderance of evidence was that Vice’s horse was in a reasonable starting position when the gates were opened by Begnaud. From this ruling, plaintiff has appealed alleging the trial court erred in finding Begnaud free from fault in starting the race when he did. However, both Boudreaux and Begnaud testified the horses were in starting position when the gate was opened. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, a reviewing court will not disturb the factual finding on appeal in the absence of manifest error. The trial judge herein was in a better position to evaluate the conflicting testimony and the witnesses’ credibility and we detect no clear error in this ruling. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Concerning the liability of Onil Bou-dreaux, this defendant testified he is in charge of operating Cajun Downs racetrack. Although operators are not the insurers of the safety of their patrons, they must conduct their operations in such a way as to not expose the patron to an unreasonable risk of harm, considering the nature of the facilities provided. Dorry v. Lafleur, 387 So.2d 690 (3rd Cir.1980), reversed on other grounds, 399 So.2d 559 (La.1981). Boudreaux stated that he knew Virgil Vice’s horse had a propensity to run to the left. He was an experienced horseman and therefore must have known of the dangers confronting spectators along the rails whenever a horse with such a propensity is allowed to run a race. Considering the nature of the facilities provided (a single rail, with nothing to prevent spectators from watching races near the rail) the trial court concluded that Boudreaux, by allowing this particular horse to run without making absolutely certain no one was near the rail, exposed patrons who were near the rail to an unreasonable risk of harm, thus breaching his legal duty and this breach was a proximate cause of the child’s damages. As aforementioned, this ruling is final inasmuch as Boudreaux neither answered the appeal nor appealed.

Regarding plaintiff’s contention that Hebert is vicariously liable for Onil Boudreaux’s negligence, the trial judge found the latter was an independent contractor and, therefore, Hebert was not liable for his acts. The trial judge noted that Boudreaux collected the gate receipts from which he paid his employees and kept 10% for himself. The remainder was distributed to the various horse owners competing on that day. Hebert took no percentage as owner. Furthermore, Hebert did not pay Boudreaux anything for his work in operating the track. The record indicates that certain favors were exchanged between the two men, such as occasional feeding and caring for each other’s horses. Plaintiff counters by noting that Hebert designed, built and maintains the track which is known as “Clement Hebert’s Race Track” and it is his only source of income. By deposition prior to trial, Hebert testified “Yes. It’s me that runs the track ...” Hebert also stated that if a friend wanted to run a race he would allow a race. Also, Hebert sells food and drinks at his concession stand and cleans up the track area. He personally requests that people stand away from the rail when he observes them on the rail. Hebert uses his own tractor to prepare the track surface for the weekend’s races, owns the stables that are used for paddocks, and he has no leases to anyone nor any concession contracts. He pastures and feeds Boudreaux’s horses at no expense as well as providing stud services for his mares at no charge.

At best, the evidence is conflicting as to the status between Hebert and Boudreaux. It appears their duties and responsibilities were distinct in this “joint venture”. Hebert had only limited control over the work of Boudreaux and vice-versa. Where, as here, there is conflicting evidence we will not disturb the factual findings of the trial court. Canter v. Koehring, Co., supra.

Plaintiff advanced three theories under which Clement Hebert could be held liable: 1) strict liability under Civil Code Article 2322; 2) basic negligence in the design and operation of the track; and 3) vicarious liability for the negligence of Onil Bou-dreaux.

The trial judge opined that the strict liability imposed by La.C.C. Art. 2322 was inapplicable as the “injury did not result from the ‘ruin’ of a building caused by ‘neglect to repair it’ or by ‘a vice in its original construction’.” To the extent the trial judge’s reasoning infers that the article’s application is limited to buildings, we note that courts have not construed the provision so strictly. The term “building” within the meaning of La.C.C. Art. 2322 refers to a structure with some permanence but it need not be suitable for habitation. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981); Boudoin v. Schwegmann Bros. Giant Supermarket, 371 So.2d 370 (La.App. 4th Cir.1971). Railings have been held to fall within the purview of this article when same is a necessary appurtenance to the structure. Bou-doin v. Schwegmann Bros. Giant Supermarket, supra. A defect giving rise to liability under this article must be of such nature as to constitute a dangerous condition which would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Campbell v. Tidwell, 407 So.2d 1359 (La. App. 3rd Cir.1981). However, for reasons which follow, we find it unnecessary to address Art. 2322’s applicability to the facts herein.

The question then arises: Was Hebert negligent in the design of the track? Hebert testified that he designed the track from observations of the many other “bush” tracks in South Louisiana, nevertheless, it is hornbook law that compliance with the norm does not mean freedom from fault. There is no device to prevent spectator from approaching and observing the races from any point along the rails. The sliding pipe gate was extremely flexible as compared to the rest of the railing, indeed it was a water pipe IW inches in diameter. The horse was attempting to jump over the sliding pipe, the pipe bent, the horse’s legs struck the pipe, and then the horse fell or rolled over the rail and on the child. Mr. Arthur Reed, an engineer who has designed tracks of all sizes, testified as to the need for a secondary fence to keep the public back from the rail. Mr. Reed’s expertise was challenged on the grounds he had not personally viewed the track in question. However, Reed testified that the majority of tracks he was aware of contained a secondary fence to protect spectators. Hebert testified that he designed the track including the sliding pipe rail which he installed to replace previous railing using planks of wood.

“The general rule with regard to places of public amusement is that the proprietor of such a place, to which the public is invited and admission is charged, is under the obligation to use ordinary or reasonable care or diligence to put and maintain his premises and appliances in a reasonably safe condition for which they are intended and designed.” 4 AM JUR 2d Amusements and Exhibitions, § 53. Liability may be predicated upon his failure to observe and fulfill a duty to inspect and discover the defect and he may be found liable for failure to warn spectators of dangers not known to them. id. at § 54.

“Anyone who invites the public to avail themselves of the use, for amusement or sport, of property owned or controlled by the invitor or in which he has a financial interest, has a duty to use reasonable care to see that the property is kept in a reasonably safe condition for the use of such invitees. Thus each joint adventurer is liable for the negligence of the other, and for the negligence of persons and agencies employed to accomplish the common purpose.” id. at § 62.

“Horse races are of necessity attended with some risks and danger to spectators, and those who conduct races must take reasonable care to protect spectators from injury. A fair association may be held negligent in failing to properly inclose the track, or in failing to provide a fence of sufficient height to prevent a horse from jumping over it.” id. at § 78.

An owner owes his invitee the duty of reasonable care which means the obligation of maintaining his premises in a condition reasonably safe for use consistent with the purpose of the invitation including the discovery of reasonably foreseeable conditions which may be dangerous and result in injury, especially where there is time to correct the perilous condition or give warning to the invitee of the danger. Kennedy v. Columbia Gas Co., 174 So.2d 869 (La. App. 1st Cir.1965) and cases cited therein. See also: Archote v. Travelers Ins. Co., 179 So.2d 658, 7 A.L.R.2d 704 (La.App. 4th Cir.1965). In Rosenberger v. Central Louisiana District Livestock Show, Inc., 312 So.2d 300 (La.1975) the Louisiana Supreme Court found that a rodeo supervisor and boss and their corporate employer were negligent in failing to check whether the gate of the rodeo facility was closed and that breach of duty was the proximate cause of injuries to a bareback bronco rider. While recognizing that bareback bronco riding is an extremely dangerous activity and the rider assumes the natural and ordinary risks of the type contest involved, the court found that he did not assume the risk of injury from negligent operations or maintenance of rodeo premises. The court further stated that the “occupier of premises used for athletic events or amusements must maintain the premises in a reasonably safe condition and furnish such equipment or services as is necessary to minimize or prevent injury to others from conditions which probably, or forseeably, may cause damage.” 312 So.2d at 305. See also: Dorry v. Lafleur, supra; and Anno., 13 A.L.R. 4th 623.

Applying the aforementioned law to the facts of this case we find that Hebert failed to exercise care commensurate with a foreseeable danger. In the absence of a railing there would be no doubt but that plaintiff would be deemed to have assumed the risk involved. However, inasmuch as there was a railing, plaintiff was entitled to assume it was reasonably safe, there being no warning to the contrary. The flexibility of the sliding pipe, installed by Hebert, its height and the design of the fence unreasonably threatened the safety of the spectators. In fact, Hebert knew that horses would occasionally jump or fall over the rail, yet the track lacked adequate warning of this danger. Clearly, had spectators been apprised of the risk of harm suffered by plaintiff, it is doubtful they would have so positioned themselves during the race. The record does not establish that either Hebert or Boudreaux used any method to assure the rail’s safety or otherwise minimize or prevent injury to others. The record does establish that the sliding flexible water pipe failed in its intended purpose of restraining horses and no secondary fence existed to compensate for this defect. Hebert breached his duty to provide sufficient barriers, guards or other protective devices to reasonably insure spectators protection from injury by horses about the place.

Compare: Gulf Stream Park Racing Assoc. v. Miller, 119 So.2d 749 (Fla.App.1960); Windeler v. Rush County Fair Assoc., 27 Ind.App. 92, 97, 60 N.E. 954 (1901); Martino v. Park Jefferson Racing Assoc., 315 N.W.2d 309 (S.D.1982).

Having found liability on the basis of negligence, we need not address whether the scope of Article 2322 and accompanying jurisprudence should be extended to a vice in the construction of a racetrack railing.

Persons whose concurring fault has caused injury to another are answerable in solido. La.C.C. Art. 2324. A proprietor is responsible not only for his own activity which causes damage but also for that carried on by his agents, contractors and representatives with his consent and permission, and liability attaches also to the agent or contractor who becomes soli-darily liable. Chaney v. Travelers Ins. Co., 259 La. 1, 249 So.2d 181 (La.1971). Accordingly, the judgment appealed is amended to cast Hebert liable in solido with Boudreaux and Vice.

The last remaining issue is whether the plaintiff is entitled to an increase in his award, set by the trial judge at $100,000 plus medical and incidental expenses. In quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case. Accordingly trial judges are vested with much discretion. Our review of the record indicates no manifest abuse of the trial court’s great discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

For the reasons assigned hereinabove, the judgment appealed is reversed in part and amended to cast Clement Hebert liable in solido with Onil Boudreaux and Virgil Vice for plaintiff’s damages. In all other respects, the judgment appealed is affirmed. Costs of this appeal are to be divided between Richoux, Hebert, Bou-dreaux, and Vice.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.


source: Caselaw Access Project

license: Public Domain

text:
    Dennis RICHOUX, et al., Plaintiffs-Appellants, v. Onil BOUDREAUX & Larry Begnaud, Defendants-Appellees.
    No. 83-193.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.

      Richard C. Broussard of Domengeaux & Wright, Lafayette, for plaintiffs-appellants.
    Ronald J. Bertrand, Rayne, Albert L. Boudreau, Jr., Gordon P. Sandoz, II, Jan F. Rowe, Abbeville, for defendants-appellees.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

For the reasons assigned in the consolidated case of Richoux v. Hebert, 449 So.2d 941 (La.App. 3rd Cir.1983) rendered this day, the judgment appealed is AFFIRMED IN PART, REVERSED AND RENDERED IN PART in accordance with the views expressed in the companion case.


text:
    William A. KEATY, D.D.S., Plaintiff-Appellee, v. FURLOW, INC., BWT-Furlow/Philbeck, Inc., Furlow Philbeck & Associates, Inc., Furlow and Associates Engineering Co., L.C.E., Inc., Dale Furlow and Ronald Allen, Defendants-Appellants.
    No. 84-62.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 1984.
    Rehearing Denied March 8, 1984.
    Hayes & Durio, Steven G. Durio, Mark C. Andrus and Jennifer M. Trosclair, Lafayette, for defendants-appellants.
    Robert B. Keaty, Lafayette, for plaintiff-appellee.
    Before FORET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

MOTION TO DISMISS

The plaintiff-appellee, William A. Keaty, moves to dismiss the appeal of the defendants-appellants, Furlow, Inc., BWT-Fur-low/Philbeck, Inc., Furlow Philbeck & Associates Inc., Furlow and Associates Engineering Co., L.C.E., Inc., Dale Furlow and Ronald Allen, on the grounds that the judgment appealed from is an non-appealable interlocutory judgment.

The trial court rendered judgment against the defendants assessing them with $250.00 attorney fees for their failure to comply with discovery as required by law. The defendants have appealed.

The motion to dismiss has merit. An appeal may be taken from a final judgment or an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. 1841.

This court has previously concluded that discovery orders, including those which assess attorney’s fees for failure to make discovery as required by statute, are interlocutory orders which are held to be nonap-pealable interlocutory judgments which do not do irreparable injury. Roy v. Moity, 225 So.2d 315 (La.App. 3rd Cir.1969).

In conformity with the jurisprudence, we conclude that the judgment rendered is an interlocutory judgment and that there has been no showing of irreparable injury. The defendants-appellants may obtain appellate review upon an appeal from the merits of the case. Accordingly, we dismiss the appeal at defendants-appellants’ cost.

APPEAL DISMISSED.


author: LOTTINGER, Judge.

text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE and Department of Natural Resources.
    No. 83 CA 0324.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.
    Carol Hanks, in pro per.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appel-lee Dept, of Natural Resources.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee Department of State Civil Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This appeal involves six cases which have been consolidated for this hearing. Numbers 83 CA 0325, 449 So.2d 509, 83 CA 0327, 449 So.2d 510, and 83 CA 0328, 449 So.2d 510, are against the Department of State Civil Service. Numbers 83 CA 0324, 449 So.2d 500 and 83 CA 0329, 449 So.2d 510 concern both the Department of State Civil Service and the Department of Natural Resources. Number 83 CA 0326, 449 So.2d 509 concerns only the Department of Natural Resources.

We will first address Docket No. 2901, our number 83 CA 0324. The other cases consolidated in this appeal all stem from that ease with the exception of Docket No. 3406, numbered 83 CA 0326 for this appeal.

For a detailed recitation of the facts see the opinion of the Civil Service Commission attached hereto.

Appellant filed an appeal on July 22, 1981, alleging that she was not paid properly because her past salaries as Administrative Assistant to September 1979, Management Analyst I to September 1980 and Management Analyst II in 1980 were not considered. Appellant alleges that she was not given the benefit of the same rules which were applied to other persons who were transferred into classified positions. Appellant alleges that when her position was changed to that of a classified position, her experience in several unclassified positions was not considered in setting her salary scale. Appellant seeks to have her pay recomputed to the pay level of Management Analyst II.

On August 16, 1982, the Department of Natural Resources filed a Request for Summary Disposition of Docket No. 2901 (83 CA 0324) stating that it did not comply with Civil Service Rule 13.11 in that it was barred by time, and that it failed to state a claim for which relief could be granted against the Department of Natural Resources.

On August 23, 1982 the Department of State Civil Service also filed a Request for Summary Disposition of Docket No. 2901 (83 CA 0324). The basis for the request was that the appeal was not timely, and did not sufficiently allege discrimination.

The State Civil Service Commission held a hearing on all the appeals on September 7, 1982. In its opinion the Commission agreed with counsels for the Department of Natural Resources and Department of State Civil Service stating that in its’ opinion the appeals were barred by Rule 13.11.

This court has scrupulously and painstakingly reviewed the briefs submitted by all of the parties, the opinion of the State Civil Service Commission, and the record in this case. We have come to the conclusion that the Commission’s ruling on the appeals was in fact and theory correct.

Civil Service Rule 13.11 requires all appeals be made in writing and received in the office of Civil Service within 30 days after the date on which appellant received written notice, or within 30 days after the appellant learned that the action complained of occurred when no written notice is required.

The appellant did not satisfy the requirement set forth in Rule 13.11. We agree with the Commission’s ruling that although appellant received the papers stating the position of the State Civil Service Commission, but did not understand what they meant, is simply not persuasive.

For the above and foregoing reasons the ruling of the State Civil Service Commission dismissing this appeal is affirmed at appellant’s costs.

AFFIRMED.

OPINION

DATED: December 3, 1982

FILED: December 3, 1982

IN RE: Appeals of Carol D. Hanks STATE OF LOUISIANA

(Department of Natural Resources CIVIL SERVICE COMMISSION

and Department of State Civil Service) DOCKET NOS. 2901, 3325, 3406, 3418, 3444 and 3445 (CONSOLIDATED)

STATEMENT OP THE APPEAL

Appellant is employed by the Department of Natural Resources as a Natural Resources Project Specialist II serving with permanent status.

On July 22, 1981, counsel on behalf of appellant filed a letter of appeal wherein appellant complains that she is not being paid properly because her salary as Administrative Assistant prior to September 1, 1979, her salary as a Management Analyst I from September 1, 1979, to September 1, 1980, and her salary as a Management Analyst II on September 1, 1980, were not considered. Appellant alleges that she has attempted to rectify the problem to no avail. Appellant complains that she does not have approved SF-l’s for the period 9/1/79 through 8/31/80, that she was not appropriately paid for a promotion to Administrative Assistant, that she was not appropriately paid when she was transferred to the classified service in the Department of Natural Resources, that the SF-1 transferring her to the Department of Natural Resources effective 9/1/79 was incorrect, that she should have been classified and paid as at least a Management Analyst I upon her transfer, that she was improperly placed on emergency appointments, and that she should be considered as qualified for a Management Analyst II. Appellant alleges that when she was transferred to a classified position, the same rules were not applied as for other persons transferred into classified positions and that there is no justification for her having been reduced in pay effective 9/1/79. The crux of the appeal appears to be that when appellant’s position was ordered to be classified, her experience in certain unclassified positions was not deemed qualifying for the classified positions of Management Analysts I and II. As relief, appellant seeks: to be recredited for the leave time she had to take to research her case and write her appeal; to have the SF-l’s effective 9/1/80, 9/1/79,10/11/77, and 6/27/77 voided and corrected; to have her pay recomputed retroactive to 9/1/79 to include adjustments for her promotion to Administrative Secretary and to Management Analyst I; to be reallocated to Management Analyst II retroactive to 9/1/80 and attorney’s fees. This appeal was docketed as No. 2901 against the Department of State Civil Service.

On June 1, 1982, appellant, in proper person, filed another appeal wherein she complains that the Department of State Civil Service violated Civil Service Rule 13.-15 by scheduling for hearing the appeal of Merilyn Ewing (which was filed three months after appellant’s) before scheduling appellant’s appeal for hearing. This appeal was docketed as No. 3325 against the Department of State Civil Service and was consolidated with Docket No. 2901.

By letter dated June 21, 1982, appellant indicated that she intended Docket No. 2901 to be against both the Department of State Civil Service and the Department of Natural Resources. By letter dated June 23, 1982, appellant was advised that the Department of Natural Resources was not made an appellee because the acts complained of were taken by the Department of State Civil Service. By letter dated July 6, 1982, appellant insisted her appeal was also against the Department of Natural Resources. On July 14, 1982, Docket No. 2901 was docketed against the Department of Natural Resources in addition to the Department of State Civil Service.

On July 27, 1982, appellant, in proper person, filed another appeal wherein she complains that the Department of Natural Resources refused to reimburse her tuition for Accounting 2001. Appellant alleges that other employees were reimbursed tuition and alleges that she was discriminated against. Appellant alleges that she was told she would not be reimbursed because the course was not essential to her promotion, but alleges that others for whom the course was not essential were reimbursed. Appellant also alleges that the course was essential to her promotion at the time she enrolled in the course, but that she has attained a different position since enrolling in the course and that the course is also related to her new position. Appellant complains that the Department of Natural Resources has failed to provide an equal opportunity to all employees to participate in educational programs. She also complains that she was discriminatorily denied use of education and annual leave. Appellant alleges that the Department of Natural Resources is retaliating against her for having filed the previous appeal. As relief, appellant seeks reimbursement of her tuition; compensation for any privileges accorded other employees; freedom from reprisal; issuance of a non-discriminatory policy concerning education courses; establishment of an educational training program; public announcement of the courses available and assistance by the Department of State Civil Service in implementing an educational program. This appeal was docketed as No. 3406 against the Department of Natural Resources. It was not consolidated with the two previous appeals.

On August 5, 1982, appellant, in proper person, filed another appeal wherein she complains that she has been denied due process and equal protection of law. She complains that the Department of State Civil Service has violated Civil Service Rule 13.15 on numerous occasions by scheduling 124 appeals (which were filed after appellant’s) for hearing before appellant’s appeal was scheduled for hearing. Appellant also complains that her hearing scheduled for August 3, 1982, was continued at the request of counsel for the Department of Natural Resources, challenges the decision made by the Department of State Civil Service to grant the continuance and alleges that Civil Service Rule 13.17 was violated because Docket No. 2901 was not originally docketed against the Department of Natural Resources. Finally, appellant complains that Docket No. 3406 was not consolidated with Docket Nos. 2901 and 3325. As relief, appellant asks that all of her appeals be heard on September 7, 1982. This appeal was docketed as No. 3418 against the Department of State Civil Service. The appeal was consolidated with Docket Nos. 2901 and 3325, but not with Docket No. 3406.

On August 16, 1982, counsel for the Department of Natural Resources filed a Request for Summary Disposition of Docket No. 2901, urging that the appeal is time-barred, that it fails to comply with Civil Service Rules 13.11(d) and (e) and that it fails to state a claim against the Department of Natural Resources.

On August 23, 1982, counsel for the Department of State Civil Service filed a Request for Summary Disposition of Docket No. 2901 wherein he argues that the appeal fails to comply with Civil Service Rule 13.-11, that the appeal was not timely filed, that the appeal does not sufficiently allege discrimination to be considered an appeal of an allocation and that while appellant challenges the use of emergency appointments in her case, she has suffered no detriment thereby.

On August 23, 1982, counsel for the Department of State Civil Service also filed a Request for Summary Disposition of Docket No. 3325 urging dismissal of the appeal on the ground that it was moot because appellant’s appeal had been scheduled for September 7, 1982. Counsel also explains that Ms. Ewing’s appeal was scheduled first because it could be heard by a referee whereas, appellant’s appeal was docketed against the Department of State Civil Service and therefore could not have been heard by a referee.

On August 26, 1982, appellant, in proper person, filed another appeal wherein she complains that the Department of State Civil Service violated Civil Service Rules 13.13 and 13.15 by failing to promptly docket appeal No. 3406, by failing to promptly notify the Department of Natural Resources of its filing and by scheduling Docket No. 3418 ahead of Docket No. 3406. Appellant challenges the decision of the Director of the Department of State Civil Service not to consolidate Docket No. 3406 with her other appeals. Appellant also alleges that the Department of State Civil Service violated Civil Service Rule 13.14 by allowing counsel for the Department of Natural Resources to file a Request for Summary Disposition of Docket No. 2901 without having proved that he sent a copy thereof to appellant. As relief, appellant seeks an investigation of the procedures for docketing and scheduling appeals for hearing and of filing Requests for Summary Disposition, consolidation of all of her appeals, an order requiring the Director to require counsel for the Department of Natural Resources to furnish appellant with a copy of the Request for Summary Disposition and a declaration that the Request for Summary Disposition is invalid because it was not filed in compliance with Civil Service Rule 13.14. This appeal was docketed as No. 3444 against the Department of State Civil Service. It was consolidated with all appeals previously filed.

On August 30, 1982, appellant, in proper person, filed another appeal wherein she complains that by filing the Requests for Summary Disposition so late, the Department of State Civil Service and the Department of Natural Resources deprived appellant of having had an earlier hearing. Appellant alleges discrimination in that other appeals against which Requests for Summary Disposition were filed were heard earlier. Appellant again complains of the failure to consolidate all of her appeals and complains that the agenda scheduling her appeals for hearing had not yet been posted. As relief, appellant seeks compensation for any harm caused by delaying her hearing and consolidation of all of her appeals. This appeal was docketed as No. 3445 against the Department of State Civil Service and the Department of Natural Resources and was consolidated with all other appeals.

On September 2, 1982, counsel for the Department of Natural Resources filed a-Request for Summary Disposition of Docket No. 3406 on the grounds that appellant failed to state a claim cognizable under Civil Service Rules and that the appeal is time-barred.

On September 3, 1982, appellant filed an Opposition .to the Request for Summary Disposition filed on behalf of the Department of Natural Resources in Docket No. 2901 wherein she argues that the Request for Summary Disposition was not filed in accordance with Civil Service Rule 13.14 and violates Civil Service Rules 14.1 and 1.14.1. Appellant also argues that her appeal does comply with Civil Service Rule 13.11 and was timely filed.

On September 7, 1982, appellant filed an Opposition to the Request for Summary Disposition filed on behalf of the Department of State Civil Service in Docket No. 2901, wherein she argues that the Request for Summary Disposition circumvents the Louisiana Constitution and violates Civil Service Rules 14.1 and 1.14.1. Appellant also argues that her appeal complies with Civil Service Rule 13.11 and that the appeal was timely filed. Appellant further argues that she has alleged a violation of Civil Service Rule 8.10 and is entitled to be heard on that issue and that she has been harmed by the use of emergency appointments.

A public hearing of all of appellant’s appeals was held before the Commission on September 7, 1982, in Baton Rouge. Docket Nos. 2901 and 3325 were limited to a consideration of the issues raised in the Requests for Summary Disposition and the Opposition thereto. The Commission will rule on each docket number in the order that they were received in the Department.

DOCKET NO. 2901

Docket No. 2901 actually included two letters that were received and docketed as the same appeal. The first letter was received from counsel on July 22, 1981. The second letter was a certified letter received also on July 22, 1981, which was prepared by the appellant in proper person, and contained numerous attachments consisting of approximately eighty pages of material.

An examination of both of the appeal letters indicates that all of the actions complained about in the letters of appeal occurred more than thirty days prior to the preparation of the appeal letters. Appellant refers to actions that were taken against her as far back as 1979 and several actions that occurred in September and December, 1980. The attachments to appellant’s appeal letter all bear dates on their faces that were covered in the same time periods. There is only one exception to this time prescription, and that was a letter from George Hamner, Director of Civil Service, that is dated June 22, 1981, which appellant claims that she received on June 24, 1981. This letter will be addressed individually later in this opinion.

Civil Service Rule 13.12 states: “(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service in Baton Rouge, Louisiana, or, (ii) is addressed to the Director of the State Department of Civil Service in Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office: 1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these rules; or 2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these rules, or if required, was given tardily or not at all.”

In all instances of appellant’s SF-l’s or in the determination and allocation of her job title and pay, or in the case of the emergency appointments, appellant received written papers identifying the actions that were being taken. Appellant was aware of the actions taken more than thirty (30) days prior to the filing of the appeal letters and had therefore failed to timely appeal. Appellant’s arguments that she received the papers, but simply did not really understand what they meant, was not persuasive to this Commission, since appellant is an extremely intelligent lady who has been extremely detailed in her appeal documents and related materials, and gives no hint of having a lack of understanding of the actions taken. The essence of the matter is that appellant simply did not agree with the actions taken, and exhausted many other remedies without filing a Civil Service appeal. When she finally chose to file a Civil Service appeal, her time had prescribed and her appeal is untimely.

The only action taken within thirty (30) days of the date the appeal was filed was by letter dated June 22, 1981, from George Hamner which was in response to appellant’s previous request that the Department of Civil Service evaluate her work experience and qualifications on the basis of her updated application, and grant her credit for qualifying management experience, which she felt she was eligible to receive. This was not a request for relief from an allocation or a reallocation of a position to a class as envisioned in Rule 13.10(d). Even if this could have been a request for relief from an allocation, the Rule requires that the appeal of such a decision indicate in detail that the Director’s decision had been discriminatory; and no such allegations exist in appellant’s appeal letters.

Docket No. 2901 therefore is subject to Summary Disposition based upon the untimeliness of its filing. The Requests for Summary Disposition are granted and Docket No. 2901 is dismissed.

DOCKET NO. 3325

By letter dated June 1, 1982, appellant is complaining that a case for Ms. Merilyn Ewing was filed approximately three (3) months after her July 22, 1981, appeal, but that Ms. Ewing’s appeal had been fixed for hearing in May of 1982, which was prior to the setting for appellant’s appeal. Appellant was asking in light of Civil Service Rule 13.15, that an explanation be given as to why her appeal was not given precedence over Ms. Ewing’s appeal.

On August 23, 1982, counsel for the Department of Civil Service filed a Request for Summary Disposition indicating that the appeal was moot and that appellant did not state a basis for an appeal in the allegations contained in her letter.

Civil Service Rule 13.15 states, “The Director shall fix the time and place for the hearing of appeals by the Commission, and, as far as practicable, shall fix them in the order in which docketed, provided that, for good cause shown, the Commission, its Chairman, or the Director may upset any fixing and may either relegate the case for refixing at the foot of the docket or give it a special assignment as to time and place.”

This Rule obviously makes the setting of the appeals discretionary on the part of the Director, and absent any declaration of any abuse of this discretionary authority, is not an appealable matter. Appellant does not allege any abuse of the Director’s discretion, but simply asks for a reason of the “good cause shown”. There was, in fact, good cause for the difference in the setting of these two appeals which had been explained to the appellant. Ms. Ewing’s case was not a case against the Department of State Civil Service. Appellant’s case was filed against the Department of State Civil Service and could only be set for hearing before the Civil Service Commission, not a referee. Ms. Ewing’s case was set earlier before a referee and was disposed of prior to the hearing of appellant’s case.

The Request for Summary Disposition is good, and this appeal is dismissed.

DOCKET NO. 3406

The appeal received July 27, 1982 and docketed as No. 3406 was heard on the merits and the Commission makes the following findings of fact:

1.In September 1981, the Department of Natural Resources made an arrangement with L.S.U. to teach an Accounting 2001 course at the Department of Natural Resources for the benefit of the employees in the Accounting series and the Mineral Royalty series. The qualifications for these series had either been changed or were in the process of being changed at the time the arrangement was made. It was definite that the Auditor’s series would require twelve hours of classroom experience in Accounting and it was anticipated that six or twelve hours of Accounting would be required for the Accounting series. This course was set up for the convenience of the employees to enhance their ability to achieve the required qualifications for promotion and the Accounting 2001 course was determined to be job related for these series which were engaged in day-to-day Accounting and Financial Statement Reports. The announcement for this course was advertised only for these two series of classes; and at the time the announcement was made, there was no indication that the Department would bear the cost of the tuition. The courses were to be arranged for the benefit of the employees in those series and they were allowed to enroll in them voluntarily if they so desired.

2. Appellant learned about the Accounting 2001 course and applied to her supervisor, Mrs. Janet Smith, for educational leave to take the course. Ms. Smith denied the request for educational leave and indicated to appellant that these courses were set up only for the Accounting and Mineral Royalty Auditor series. Appellant then requested annual leave to take the course. Appellant’s request for annual leave was denied since the job work load did not allow the time off for employees to take a course that was not required. Appellant was fully advised of the intent of this course for the two series of classes aforementioned and did not appeal her denial of leave to take the courses.

3. Appellant rearranged her schedule and did take the Accounting 2001 course. The course concluded in December of 1981.

4. Sometime in the early part of 1982, Mr. Jerry Hill, Undersecretary of the Department of Natural Resources, received funding to pay the tuition for the Accounting 2001 course to the employees who were employed in the Mineral Income Division and the Fiscal Section of the Office of the Secretary. When appellant learned about this, she made a request dated June 23, 1982, asking Mr. Hill to also reimburse her $105.00 for her tuition to take this course. By letter dated July 14, 1982, Mr. Hill denied appellant’s request for reimbursement indicating that the course was not job related to her classification, nor did it assist her in her eligibility for promotion in her series.

5. There was only one other employee in the Department of Natural Resources who had taken the Accounting 2001 course and was reimbursed for the tuition cost. This employee had not been employed in either of the two series previously referred to at the time that the course was taken, but had committed to transfer to the Accounting Department as soon as the course was completed.

The evidence presented indicates to the Commission that there was a sufficient basis for the discretionary decision made by Mr. Hill and that his action was not discriminatory against this appellant. Appellant knew from the outset that this course was arranged for certain job classifications with job related reasons. Although appellant might have argued that the course was related to her previous position, it was not related to the position she held at the time she requested the tuition.

The appeal in Docket No. 3406 is denied.

DOCKET NO. 3418

By letter dated August 5, 1982 which was docketed as Docket No. 3418, appellant complained of having her August 3, 1982, setting continued until September 7, 1982, because the attorney for the Department of Natural Resources had a conflict in another court on August 3, 1982. Appellant complained that the appointing authority should have selected another attorney rather than request a continuance of her appeal. Additionally, appellant complained that she had been notified that her third appeal would not be consolidated with her first two appeals, because the content was not similar to the first two appeals. As relief, appellant requested that all of her appeals be consolidated and that there be no additional delays beyond the September 7, 1982 hearing date.

Since both items of relief sought have been granted, the appeal in Docket No. 3418 is moot. The appeal is therefore dismissed as all relief requested is satisfied by the hearing of all appellant’s appeals on September 7, 1982.

DOCKET NO. 3444

By letter dated August 26, 1982, appellant again complained of the fact that she had learned that several other cases having a lower docket number than hers had been scheduled for hearing prior to her appeals. She therefore, did not feel that the Director of the Department of State Civil Service had complied “as far as practicable” in the setting of her appeals in the order in which they had been docketed. As relief, appellant requested an investigation concerning the Director’s procedure for the docketing and scheduling of Civil Service appeals. Appellant also complained that the Director did not comply with Civil Service Rule 13.-14(b) because he did not require proof of service before filing the Request for Summary Disposition filed on behalf of the Department of Natural Resources. Appellant seeks a requirement by the Commission that the Director follow Civil Service Rule 13.14(b). Finally, since the Request for Summary Disposition had been delivered to her attorney rather than to the appellant, she requested that the Request be declared invalid.

In reverse order, the Commission explained to the appellant that the filing of a Request for Summary Disposition could be done at any time up to and including the time of the hearing, and could be made either in writing or verbally. The fact that the Department of Natural Resources had filed a written Request and certified delivery of it to the original counsel who was enrolled for the appellant (even though appellant had subsequently dismissed her counsel), did not serve to invalidate the Request as presented. Appellant did receive a copy of the Request and was in no way prejudiced by the failure of the appointing authority to originally certify delivery to the appellant. This portion of the appeal is therefore moot.

Although there were no allegations that the Director had abused his discretionary authority in the setting of the docket, nevertheless, the Commission took evidence on this point. Laura Holmes, Chief Referee, had been delegated the authority to select the appeals to be heard each month by the Civil Service Commission. Ms. Holmes went month-by-month down the scheduling of the dockets to explain the procedures used in the setting of the dockets. Ms. Holmes explained that the consolidation of the six appeals was obviously going to be a long hearing. The time for setting this hearing, therefore, had to require the availability of an entire day of the Commission’s time to hear all of the appeals filed by this appellant. Also, since the appeals were directed against the Department of State Civil Service, the appeal had to be heard before the Commission rather than before a referee. Additionally, since there was the possibility of numerous witnesses, the practice of the Department is to set the cases to be heard in the city where the majority of the witnesses are located. In this particular case, it meant setting the docket for these six appeals in Baton Rouge and of course, this necessitated a month when the Commission was meeting in Baton Rouge. Following these guidelines, there were only three months that were possible for the setting of this appeal. The first month was March of 1982, the second was June of 1982, and the third was August of 1982. In the month of March there was a large case docketed against the Department of State Civil Service involving numerous employees of the Department of Natural Resources that was scheduled and for which counsel for the Department of State Civil Service had to spend a great deal of time in preparation. He had asked, reasonably, that two heavy eases requiring hours of preparation not be scheduled for the same hearing date. In June of 1982, counsel for the Department of State Civil Service was not in Baton Rouge during the hearing dates of the Commission. In August of 1982, counsel for the Department of Natural Resources had conflicting schedules for other court appearances. This finally brought the first available meeting date to September 7, 1982, on which the cases were scheduled and heard.

No testimony indicated that any undue delays had been granted or that any unreasonable scheduling procedures had been used, based upon the length of the appeals to be heard and the parties involved. This charge, therefore, is found to be without merit.

Docket No. 3444 is denied and dismissed.

DOCKET NO. 3445

By letter received August 30, 1982, appellant again identified additional appeals that she had filed and asked that they all be consolidated for hearing on the September 7, 1982, hearing date. She also again complained about the delay in scheduling of her appeals and asked that the Commission, “require the Department of Civil Service and the Department of Natural Resources to compensate her for any harm resulting, either directly or indirectly, from those delays imposed upon her concerning her appeals. This compensation for harm should include, but should not be limited to, the occurrence of any physical harm resulting from the unending stress caused by unending delays.”

The appeals were all consolidated and were heard on September 7, 1982. This request is therefore moot.

Appellant, in her appeal letter, gave no particulars of any “harm” which she alleged had resulted from the delays in hearing her appeals. When questioned by the Commission, appellant indicated that there had been no harm either physically or mentally that she could recite to us.

The Commission finds, therefore, that there is no legal basis for this appeal and the appeal is therefore denied and dismissed.

s/ James R. Smith James R. Smith, Chairman

s/ Watson S. Finister, Jr. Watson S. Finister, Jr., Vice-Chairman

s/ A.J. Capritto A.J. Capritto, Member

s/ David D. Duggins David D. Duggins, Member

s/ Edwin C. Harbuck Edwin C. Harbuck, Member

s/ Marshall J. Ryals Marshall J. Ryals, Member

s/ James A. Smith James A. Smith, Member


text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83 CA 0325.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Carol Hanks, in pro per.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Hanks v. Department of State Civil Service and Department of Natural Resources, 449 So.2d 500, the decision of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


text:
    Carol D. HANKS v. DEPARTMENT OF NATURAL RESOURCES.
    No. 83 CA 0326.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Carol Hanks, in pro per.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appel-lee Department of Natural Resources.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Department of State Civil Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This case consolidated for appeal with 449 So.2d 500 and others involves plaintiffs complaint that she was not reimbursed for tuition expenses for an accounting course which was successfully completed. However, plaintiff has not briefed this assignment of error and, therefore, it is considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.


text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83 CA 0327.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Carol Hanks, in pro per.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Hanks v. Department of State Civil Service and Department of Natural Resources, 449 So.2d 500, the decision of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83 CA 0328.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Carol Hanks, in pro per.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Hanks v. Department of State Civil Service and Department of Natural Resources, 449 So.2d 500, the decision of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


text:
    Carol D. HANKS v. DEPARTMENT OF NATURAL RESOURCES and Department of State Civil Service.
    No. 83 CA 0329.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Carol Hanks, in pro per.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appel-lee Department of Natural Resources.
    Robert R. Boland, Jr., Civil Service Legal Counsel Dept, of State Civil Service, Baton Rouge, for appellee Department of State Civil Service.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Hanks v. Department of State Civil Service and Department of Natural Resources, 449 So.2d 500, the decision of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


author: SHORTESS, Judge. PER CURIAM.

text:
    Albert RUSHING v. DAIRYLAND INSURANCE COMPANY.
    No. 83 CA 0355.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    On Rehearing April 3, 1984.
    Writ Granted April 23, 1984.

      James E. Kuhn, Denham Springs, for plaintiff.
    Joseph G. Simmons, Baton Rouge, for defendant.
    E. Wade Show, Baton Rouge, for interve-nor.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On April 8, 1980, Albert Rushing (plaintiff) purchased a 1979 Ford Courier pickup truck. He financed the credit portion of the purchase price with Ford Motor Credit Company (Ford). The loan was secured by a mortgage on the truck. Plaintiff also obtained automobile insurance from defendant, Dairyland Insurance Company. Ford was named as the loss payee on the collision and comprehensive sections of the policy. On January 13, 1982, the truck was involved in an accident and rendered a total loss. On March 31,1982, plaintiff filed suit against defendant for his collision loss and for attorney’s fees. On April 1, 1982, Ford filed suit against plaintiff for the balance due it and also seized and sold the truck without the benefit of appraisal. On July 19, 1982, Ford intervened in plaintiff’s suit against defendant,' seeking recovery from the proceeds of the insurance policy to the extent of the amount still due on the debt, stipulated to be $3,109.98.

The trial court dismissed Ford’s intervention. Judgment was rendered in plaintiff’s favor after the court found the value of plaintiff’s vehicle prior to the accident was $4,000.00. It also awarded $1,000.00 for attorney’s fees, $110.00 for expert witness fees, and $20.00 for court reporter fees. FACTS

On January 13, 1982, plaintiff’s truck collided head-on with a Mississippi Power and Light truck. Plaintiff’s friend Bryant Thompson was driving the truck at the time of the accident. The impact was severe. The truck was inoperable after the accident and was taken to Thompson’s house on a trailer. Plaintiff testified that he contacted defendant after the truck was removed to Thompson’s house. Plaintiff wanted $4,500.00, but defendant refused to pay more than $2,400.00. Settlement negotiations broke down, and plaintiff filed suit on March 31, 1982. Plaintiff conceded that he removed the battery, the front wheels and tires, the spare, the jack, and the radio from the truck while it was at Thompson’s house.

Thompson testified that the truck was in excellent condition before the wreck. He stated that the upholstery, the dash, the glove compartment, the tires, and the battery were ruined in the wreck. Thompson has owned seven trucks, six of which were Fords. He offered to purchase plaintiff’s truck shortly before the wreck for $4,000.00, notwithstanding the fact that he knew that plaintiff had paid $4,195.00 for the track two years before. Thompson said that he and plaintiff installed the radio because the truck did not come with a radio. The truck remained at Thompson’s house for approximately six weeks before it was taken to Brown and Sons Auto Salvage.

Thomas Newsom appraised the truck for the defendant after it was removed to Brown and Sons Salvage. Newsom is employed by Sentry Insurance Company which subsidizes defendant. In his opinion, the value of plaintiffs truck prior to the accident was $2,747.58. He reached this conclusion in the following manner. First, he took the average of the NADA used car guide value and three dealer quotes. His mid-range book value was $4,240.00, the Nelson & East Ford quote was $3,500.00, the Richard’s Ford quote was $4,000.00, and the Audubon Ford quote was $4,795.00. The average of these four figures was $4,133.75. Newsom then deducted $1,386.17 for prior damage and missing items. Of the $1,386.17, the missing items had a total value of $290.00 ($110 for the battery, $105 for the two front wheels and tires, $20 for the spare, $25 for the jack, and $30 for the radio). Therefore, Newsom deducted $1,096.17 for prior damage. He distinguished prior damage from damage caused by the wreck by the different color and consistency of the rust.

George Meyer of Ford Motor Credit Company prepared a legal review report which showed an average retail value for the truck of $4,425.00. He testified that his figure was derived from the NADA book.

Rodney McIntyre of Hammond Motors Body Shop appraised the truck. In his opinion, the value of the truck in good condition was between $4,500.00 and $5,000.00. McIntyre explained that plaintiff’s truck may have increased in value since the date of purchase because “trucks are a pretty hot item, you know, as far as re-sale.”

ISSUES

Both defendant and Ford Motor Credit Company have appealed, and plaintiff has answered the appeal requesting additional attorney’s fees. Defendant says that the trial court erred in (1) finding that the value of the truck prior to the accident was $4,000.00; (2) awarding penalties under La. R.S. 22:658; and (3) granting expert witness fees for a witness. Ford Motor Credit Company contends that the trial court erred in dismissing its intervention. MARKET VALUE OF TRUCK

The measure of damages when an automobile has been damaged beyond repair is the market value of the vehicle before the accident less its salvage value, if any. Cenac v. Duplantis Moving & Storage Co., 407 So.2d 424 (La.App. 1st Cir. 1981). Market value takes depreciation into consideration. Cenac, 407 So.2d at 426. In the instant case, Russell Brown of Brown and Sons Salvage testified that the truck had no salvageable metal. All parties concede that the truck was a total loss. The question thus becomes the market value of the truck prior to the accident.

Thompson, Meyer, and McIntyre all estimated the value to be between $4,000.00 and $5,000.00. Only Newsom placed the value within the $2,000.00 range, and even his testimony revealed that the NADA book value was $4,240.00. The trial judge found the value to be $4,000.00, stating that “the Court does not believe the defendant’s witness is qualified to make a determination as to whether damage existed prior to the accident in this case.” The trial judge did not abuse his discretion in his determination of the truck’s value, especially in light of the fact that his valuation is close to the NADA value. However, his finding that nothing in the record justifies a reduction in the value is erroneous. Plaintiff admitted that he removed certain items from the truck. The award of $4,000.00 must be reduced by $260.00 which represents the value of the removed battery, front wheels and tires, spare, and jack. Although Newsom deducted an additional $30.00 for a missing radio, our review of the record leads us to the conclusion that plaintiff installed the radio after he purchased the truck.

ATTORNEY’S FEES

The trial judge awarded plaintiff $1,000.00 for attorney’s fees. La.R.S. 22:658 provides for penalties in the event that the insurer does not pay within sixty days after receipt of satisfactory proofs of loss and demand therefor when such failure to pay is found to be arbitrary, capricious, or without probable cause. This statute is penal in nature and must be strictly construed. Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983). In addition, the burden is on the claimant to prove lack of probable cause, arbitrariness or capriciousness. Batiste v. Pointe Coupee Constructors, 401 So.2d 1263 (La.App. 1st Cir. 1981), writ denied, 409 So.2d 615 (La.1981). One who claims damages and attorney fees also has the burden of proving that the insurer has received satisfactory proof of loss. Hart, 437 So.2d at 827-828. There is nothing in the record to indicate that Dairy-' land ever received a proof of loss from plaintiff within the required sixty days before suit was filed on March 31, 1982. Newsom was assigned the claim on February 18, 1982. We have already recited in detail how he arrived at his damage valuation. Defendant’s decision to contest the amount plaintiff was seeking was not arbitrary or capricious and without probable cause because it (1) had no satisfactory proof of loss from plaintiff, and (2) had its own damage appraisal which was much less than plaintiff’s. We have reduced the damages on appeal. The award of attorney’s fees was manifestly erroneous and must be reversed.

EXPERT WITNESS FEE

Setting expert witness fees and taxing them as costs are matters within the discretion of the trial judge, and said awards will not be disturbed on appeal absent an abuse of discretion. La.R.S. 13:3666; Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App. 3rd Cir.1975), writs denied, 320 So.2d 207, 209 (La.1975). Defendant says that the trial court erred in awarding $110.00 in expert witness fees to McIntyre because his testimony did not add any significant expert testimony. McIntyre was accepted by the court and also by counsel for defendant as an expert in the field of body repair and the sale of vehicles. He appraised the truck and gave his opinion as to the value of the truck prior to the accident. Defense counsel cross-examined him and attempted to use his testimony to show that some of the damage was present prior to the accident. His opinion was accepted by the trial court. We find no abuse of discretion in the trial court’s award of fees to this witness.

INTERVENTION

Ford intervened in this suit seeking to recover to the extent of its loan under the loss payable clause. Ford had already seized and sold the truck without the benefit of appraisal. The trial judge dismissed the intervention “by virtue of the fact that the executory proceedings which were filed against Mr. Albert Rushing were filed without appraisal.” The issue presented is whether a seizing creditor who is also a loss payee on an insurance policy is precluded from claiming insurance proceeds when he has seized and sold the mortgaged property without the benefit of appraisal.

In Powell v. Motors Insurance Corporation, 235 So.2d 593 (La.App. 1st Cir.1970), this court addressed the very issue that is presented in the instant case. In Powell, 235 So.2d at 594, the plaintiff filed suit to recover for the loss of his automobile under the terms of his insurance policy. General Motors Acceptance Corporation (GMAC) intervened seeking payment of the insurance proceeds because the policy contained a loss payable clause to it. The court held that GMAC lost its right to the insurance when the mortgaged property was sold without appraisal. In reaching this conclusion, the court stated that the creditor-loss payee does not have any greater rights to collect from its debtor’s insurer than it would have against its debtor. “The right to collect from the insurer under the loss payable clause is derived from the debtor and once his obligation is extinguished the right to collect under the loss payable clause is likewise extinguished.” Powell, 235 So.2d at 595. Contra, American Bank & Trust Company v. Byron, 347 So.2d 850 (La.App. 2nd Cir.1977), application not considered, 350 So.2d 676 (La.1977), writ denied, 351 So.2d 155 (La.1977); Guinn v. Houston Fire & Casualty Insurance Company, 32 So.2d 613 (La.App. 1st Cir.1947). A similar factual situation is presented here. When Ford Motor Credit Company sold the mortgaged truck without appraisal, it lost its right to collect under the insurance policy. The trial judge correctly dismissed the intervention.

DECREE

For the reasons set forth above, the judgment in favor of plaintiff for the value of the truck is amended to $3,740.00; the judgment in favor of plaintiff awarding attorney’s fees is reversed; the judgment fixing expert witness fees is affirmed. Costs of this appeal are taxed equally to Ford and defendant.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Dairyland Insurance Company’s application for rehearing is granted for the limited purpose of determining whether the judgment rendered is objectionable on the grounds that we failed to give Dairyland credit for the deductible provided for in its collision policy with plaintiff.

We have examined the policy, and it did provide for a $250.00 deductible on collision loss.

Accordingly, our original judgment is amended to the following extent: judgment in favor of plaintiff for the value of the truck is amended to $3,490.00.