author: BARRY, Judge.

text:
    A.J. SCHMITT, Jr., v. The CITY OF NEW ORLEANS, Honorable Ernest N. Morial, Mayor, Honorable Evelyn Pugh, Director of Safety & Permits City of New Orleans.
    No. CA-3007.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 1984.
    Rehearing Denied Jan. 7, 1985.
    Writs Denied March 8, 1985.
    A.J. Schmitt, Jr., M.W. Mathes, Schmitt & Mathes, New Orleans, for plaintiff-appel-lee.
    Salvador Anzelmo, City Atty., Karen Mil-ner, Deputy City Atty., New Orleans, for defendants-appellants Mayor Ernest N. Morial and Evelyn Pugh, Director of Safety and Permits.
    Okla Jones, II, Jones, Nobonne & Wilkerson, New Orleans, for defendant-appellant City of New Orleans.

      Before GARRISON, BARRY and L0-BRANO, JJ.
   BARRY, Judge.

Defendants appeal a writ of mandamus ordering the City of New Orleans and its Director of Safety and Permits to issue two C-l building permits to plaintiff. The issue is whether plaintiffs applications should be governed by C-l or C-1A zoning.

Plaintiff owns 1403 and 1429 St. Charles Ave. which were zoned C-l. In September 1982 the City passed ordinances 8762 and 8764 which would have re-zoned the properties to the more restrictive C-1A. On February 17, 1984 the City Attorney issued an opinion letter pointing out various procedural defects and questioning the validity of the ordinances.

On February 22, 1984 plaintiff filed for C-l permits to construct a Shoney’s restaurant and Walgreen’s drugstore (permitted uses). The applications were denied due to the C-1A classification which allows conditional use subject to City Council approval.

On March 15, 1984 the City Council passed ordinances 9741 and 9768 which attempted to correct ordinances 8762 and 8764 and re-enact the C-l A zoning. Ordinances 9741 and 9768 were challenged and the City Council, on May 17, 1984, adopted motions M-84-157 and M-84-158 which authorized the Planning Commission to reini-tiate the entire zoning process in order to correct all defects in the attempted C-1A ordinances. Due to errors in public notices the motions were replaced by motions M-84-211 and M-84-213 on July 5, 1984.

Plaintiff filed this mandamus on August 6, 1984 to compel issuance of the C-l permits. The trial court granted mandamus, holding that the C-1A ordinances were invalid. We affirm.

EXCEPTION OF PREMATURITY

Defendants assign error to the denial of an exception of prematurity. They contend filing the mandamus was premature because plaintiff failed to exhaust his administrative remedies by not appealing to the Board of Zoning Adjustments.

Plaintiff concedes he did not appeal, but maintains to have done so would have been a “vain and useless” act and caused irreparable injury.

La.R.S. 33:4727 confers upon local governments the authority to create a Board of Zoning Adjustments and C(3)(a) provides that the Board shall have authority:

To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of R.S. 33:4721 through R.S. 33:4729 or of any ordinance adopted thereto.

Pursuant to R.S. 33:4727, the City of New Orleans Home Rule Charter, Section 4-704(2)(b), created a Board of Zoning Adjustments whose function is to:

Hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of the zoning ordinance of the City.

Ordinance 4264 of the Comprehensive Zoning Ordinance at Article XIII, Sections 8, 12, and 16 codifies the appeals procedure:

Section 8. Appeals from Error
The Board shall hear and decide appeals when it is alleged there is error in any order, requirement, decision, or determination made by the Director of Safety and Permits in the enforcement of this Ordinance.
Section 12. Decisions of the Board
In exercising the above mentioned powers the Board may, in conformity with the provisions of this Article, reverse or affirm wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such other order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the Director of Safety and Permits....
Section 16. Appeal to Courts
Any person or persons, or any officer, department, commission, board, bureau, or any other agency of the City of New Orleans jointly or singularly aggrieved by any decision of the Board of Zoning Adjustments may present to the Civil District Court of the Parish of Orleans, within thirty (30) days after the filing of the decision in the office of the Board, a writ of certiorari asking for such relief and under such rules and regulations as are provided for such matters in appropriate legislation of the State of Louisiana.

These provisions set out the procedures for enforcement of the city’s zoning ordinances. However, the Board of Zoning Adjustments has no authority to consider or make a decision on the validity of a zoning ordinance.

In Dunn v. Parish of Jefferson, 242 So.2d 845 (La.App. 4th Cir.1971), we held where the Board of Zoning Adjustment has no authority to address an issue on appeal, the aggrieved party may institute a direct action in district court. In Dunn the plaintiff obtained a permit which was later revoked by the Safety Director. The plaintiff filed a mandamus in district court without first appealing to the Board of Zoning Adjustment. In holding the plaintiff need not exhaust administrative remedies before seeking relief in district court, we said:

Plaintiffs allegations here, of revocation without notice or hearing, is an allegation of an attempted revocation not authorized by the Code and therefore not in enforcement of the Code. In our opinion, regardless of whether the Board of Standards and Appeals might have accepted an appeal from this attempted revocation if filed within the 15-day period allowed by Art. 402, plaintiff’s petition asserts a completely unauthorized act by the Director which, if proven as alleged, is wholly null and ought forthwith to be stricken down by the court, which itself must be open to afford every person adequate remedy for injury, administering justice without unreasonable delay, La. Const. Art 1 § 6. The haphazard possibility that some administrative agency might be able to afford an administrative remedy cannot close the courts. Dunn v. Parish of Jefferson, supra at 846.

Likewise, in Hardy v. Mayor and Board of Aldermen, City of Eunice, 348 So.2d 143 (La.App. 3rd Cir.1977), the court held that where there is no provision in the state statutes or local ordinances which empowers the Board of Zoning Adjustment to consider or rule on the validity of a change in the classification of property under a zoning ordinance, plaintiff’s remedy is in district court.

Defendants cite State ex rel Bert Leasing Corporation v. Donelon, 173 So.2d 24 (La.App. 4th Cir.1965), but that plaintiff did not attack the validity of a zoning ordinance, only the denial of a building permit. That Board of Zoning Appeals, unlike the Board in our case, had authority to decide the appeal.

It is clear the Board of Zoning Adjustments has no authority to decide the validity of an ordinance in its enforcement of the city’s comprehensive zoning ordinances pursuant to City of New Orleans Home Rule Charter, Section 4-704(2)(b) and ordinance 4264 M.C.S. Article XIII, Section 8. Therefore, plaintiff’s recourse was this lawsuit in district court. The prematurity exception was properly overruled.

VALIDITY OF 1982 ORDINANCES

Defendants contend the trial court erred by holding ordinances 8762 and 8764 invalid.

The cogent reasons for judgment explain:

In 1982, Ordinance No. 8762 attempted to amend the 1970 Comprehensive Zoning Ordinance to provide for a new zoning district known as C-1A, General Commercial District. However, nowhere in the preamble of that ordinance is it mentioned what ordinance, article, or section is to be amended. That defect is fatal to the efficacy of the ordinance.
In 1982, Ordinance No. 8764 was enacted to reclassify C-l zoning to C-1A zoning. Although Ordinance No. 8764 is proper in form, it is without effect of law because C-1A did not exist. The evidentia-ry opinion of the city attorney supports this conclusion.
Furthermore, the New Orleans Home Rule Charter requires that notice of the introduction of an ordinance “shall” have been published not less than two weeks after its introduction. The ordinances were introduced on August 5, 1982. Notice was not published until August 23, 1982, more than two weeks later. This deficiency also renders the ordinances null and void.

Defendants contend the trial court’s conclusions sacrifice substance for form. They argue municipal legislative acts are presumed to be valid and should be interpreted to sustain validity if susceptible to reasonable interpretations. City of Shreveport v. Curry, 357 So.2d 1078 (La.1978); Gurst v. City of Natchitoches, 428 So.2d 502 (La.App. 3rd Cir.1983).

While the validity of municipal legislative acts is presumed, it is equally true that zoning laws are in derogation of the rights of private ownership. Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3rd Cir.1974); Roberts v. Jefferson Parish Council, 235 So.2d 131 (La.App. 4th Cir.1970). As a result, our courts have consistently required strict compliance with the statutory procedures regulating enactment of zoning laws. De Latour v. Morrison, 213 La. 292, 34 So.2d 783 (La.1948); State ex rel Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932); Kirk v. Town of Westlake, 421 So.2d 473 (La.App. 3rd Cir.1982). Failure to comply with such procedures is fatal to the validity of the zoning ordinance. State ex rel Chachere v. Booth, 196 La. 598, 199 So. 654 (1940); State ex rel Shaver v. Mayor and Councilmen of Town of Coushatta, 196 So. 388 (La.App. 2nd Cir.1940).

Under these facts the trial judge did not err in declaring ordinances 8762 and 8764 void. Section 3-112(5) of the Home Rule Charter of the City provides that a proposed zoning ordinance shall not be adopted until notice of the introduction of such proposed ordinance shall have been published in the official journal of the city not less than one week nor more than two weeks after the introduction of the proposed ordinance. The record shows that 8762 and 8764 were introduced on August 5,1982. The required notices were published on August 23, 1982 — eighteen days later. Publication moré than two weeks after introduction of the ordinances was a clear violation of Section 3-112(5).

Zoning ordinances with similar procedural defects have been judicially voided. In State ex rel Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932) a zoning ordinance was held void because it was published less than thirty days as required by statute. Similarly, in Breaux v. Town of Oberlin, 247 So.2d 195 (La.App. 3rd Cir.1971) a zoning ordinance was declared invalid where fourteen days had lapsed between the first public notice and its hearing date, instead of the mandated fifteen days.

The provisions of Section 3-112(5) are clear and unambiguous. Failure to comply renders ordinances 8762 and 8764, M.C.S. void.

Other fatal procedural infirmities as to 8762 and 8764 exist (as noted in the reasons), however, it is unnecessary to discuss them.

VALIDITY OF 1984 ORDINANCES

Defendants contend the trial court erred by holding ordinance 9741 (enacted March 15, 1984) contained procedural defects which “could render” it void, and even if valid could not be applied retroactively to deny the permits requested February 22, 1984. Defendants also maintain it was error to conclude that a pending council motion authorizing a zoning study was legally insufficient to deny the permits.

Plaintiff argues that 9741 is deficient in three respects: (1) it was altered to delete a grandfather clause from the final ordinance in violation of Section 3-112(3) of the Home Rule Charter, (2) the ordinance was not referred to the City Planning Commission for public hearing, study, and report in accordance with La.R.S. 33:4721-4726 and ordinance 4264 M.C.S., Art. 15, (3) the public notice of introduction does not state its substance in violation of Section 3-112(5) of the Home Rule Charter.

We find ordinance 9741 (and companion 9768) invalid for lack of referral to the City Planning Commission and pretermit the other alleged defects.

La.R.S. 33:4721-4726 and ordinance no. 4264 M.C.S., Art. 15, set forth exact statutory procedures for the amendment of zoning ordinances. Under 4264 M.C.S. Art. 15, upon introduction of an ordinance seeking to amend a zoning ordinance, the proposed ordinance must be referred to the City Planning Commission which shall hold a public hearing. Notices of the proposed change and the time and date of the hearing must be published once a week for three consecutive weeks. At least twenty days must lapse between the first publication and the date of the hearing. A printed notice must be posted for not less than twenty consecutive days prior to the hearing on signs of a designated size placed on each street adjoining the area affected. The signs must give an accurate statement of the proposed change. After the hearing, the Planning Commission must submit its report and recommendations to the Clerk of the City Council. The City Council cannot take any action until the Planning Commission’s report has beén received.

In a similar vein, La.R.S. 33:4725 and 4726 evidence the state’s requirements for public hearing and official notice which apply equally to all amendments of a zoning code. La.R.S. 33:4726 sets out the same basic requirements as 4264, M.C.S., Art. 15: public hearing, notice thereof published three times with at least ten days between the first publication and date of hearing, and report of findings and recommendations by the planning commission to the municipality’s legislative body which may not take action until receipt of the final report of the commission.

It is admitted that ordinance 9741 was not referred to the city planning commission for public hearing. Instead, the City Council attempted to avoid the prescribed process by using the 1982 report (on ordinances 8762 and 8764).

Ordinance 9741 was a new and separate ordinance. Local and state law requires it be referred to the Planning Commission. La.R.S. 33:4726 and ordinance 4264, Art. 15 evince a strong policy for preserving to the landowner and neighbors every opportunity to a current public hearing. 9741 should not have been adopted on the coattails of the invalid 1982 ordinance. To do so is impermissible causing ordinances 9741 and 9768 to be ipso facto void.

NO RIGHT OF ACTION

Defendants exception of no right/no cause of action is based on the pending Motion M-84-211 (purporting to reenact for the third time the C-1A zoning). Defendants submit even if all of the ordinances were void, the pending City Council motion was sufficient to deny the permits.

In other words, defendants argue that one does not have a vested right in a zoning classification. Accordingly, when an amendment to a zoning ordinance, under which the proposed use would be prohibited, is “pending”, the permit may be delayed or denied.

Defendants cite numerous common law authorities; however, in Louisiana a writ of mandamus ordering the issuance of a building permit shall be granted when no valid ordinance prohibiting the issuance of said mandamus is in effect at the time of the district court’s judgment. State ex rel Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932); State ex rel Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177 (1945); State ex rel Romero v. Viator, 217 La. 239, 46 So.2d 256 (1950). As we held above, at the time mandamus was issued, there was no valid ordinance to support C-1A zoning.

Finally, defendants filed a motion to allow additional evidence into the record, and alternatively, for remand. They allege following trial, the City Council, on October 4, 1984, passed ordinances 10090 and 10091 which created C-1A zoning. Defendants claim we are governed by the ordinances which are in force at the time of this decision.

State ex rel. Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932) involved an analogous situation. The district court granted mandamus and ordered issuance of a permit because the ordinances relied on for denial of the permit were invalid. Mandamus was appropriate because the prohibitory ordinances were void at the time of the district court judgment.

After the district court judgment in Hol-combe, the City adopted another ordinance to prohibit the construction which plaintiff was entitled to pursuant to the mandamus. The Supreme Court held that an ordinance enacted after the district court granted mandamus had no effect on the appeal from the mandamus. The court stated: “there is no good reason why a case of this kind should be remanded or reopened whenever the municipality adopts another ordinance ...” State ex rel. Holcombe v. City of Lake Charles, supra, 144 So. at 504. See also Moncla v. City of Lafayette, 241 So.2d 307 (La.App. 3rd Cir.1970).

Holcombe is applicable here. Ordinances 10090 and 10091 have no affect on this appeal and the motion to admit them into the record is denied.

The judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Geraldine FONTENOT, Plaintiff-Appellant, v. Alphan Charles KLUMPP, Defendant-Appellee.
    No. 83-1158.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writ Denied March 22, 1985.

      Young & Burson, Lynette Young Feucht, Eunice, for plaintiff-appellant.
    Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Geraldine Fontenot, plaintiff-appellant, instituted this suit against her ex-husband, Alphan Charles Klumpp, defendant-appel-lee, seeking the specific performance of a provision of their community property partition agreement which provided that Mr. Klumpp was to make rehabilitation payments to Ms. Fontenot of $1,500.00 per month for thirty-six months. The trial court rejected the demand and rendered a judgment in favor of Mr. Klumpp. The plaintiff perfected this appeal.

The parties were legally separated from bed and board on September 21, 1981. No temporary alimony was awarded. By an instrument dated May 27, 1982, the parties voluntarily partitioned their community property. The disputed provision of the contract reads as follows:

“Both parties do also agree that the above transaction is a complete and separate partition of community property between them and stands upon its own recited terms and conditions, but in an attempt to help rehabilitate said Geraldine Fontenot and in lieu of any present alimony claim she may have, Alphan Charles Klumpp agrees to pay to her an additional $1,500.00 a month for 36 months beginning June 5, 1982. This shall be in lieu of alimony and Geraldine Fontenot does hereby waive any claim for present alimony in consideration of this payment for 36 months. However, if she marries within this 36-month period, no payments shall be due and payable subsequent to date of her marriage.”

Mr. Klumpp made two payments of $1,500.00 each in June and July of 1982 pursuant to this provision of the contract and then ceased payments. On November 8, 1982, the plaintiff filed a petition for the specific performance of the payment of the outstanding installments. At the trial conducted on the matter it was established that the plaintiff began engaging in sexual relations with another man during the summer of 1982. The plaintiff admitted that for one two-week period this man lived with her at her home. Mr. Klumpp testified that the plaintiffs relationship with this man was the reason why he ceased the rehabilitation payments. The trial court rendered judgment against the plaintiff and rejected her demand. In his reasons for judgment the trial court referred to a memorandum submitted to the trial court by the defendant as the basis of its decision. This memorandum is not found in the record so it is impossible to determine the reasons for the trial court’s judgment. The plaintiff perfected this appeal.

The appellant’s principal argument is that the disputed provision should be interpreted to mean that Mr. Klumpp is obligated to pay $1,500.00 per month in rehabilitation payments for thirty-six months in exchange for a waiver of alimony by Mr. Fontenot for the same thirty-six month period. Furthermore, the appellant contends that her personal life is irrelevant because these payments are pursuant to a contract and are not in any way related to the right to permanent alimony provided by La.C.C. art. 160 and its open concubinage provision as a justifiable reason to cease alimony payments. The appellee on the other hand contends that through this disputed provision he volunteered to make these gratuitous rehabilitation payments beyond any legal obligations of alimony that he may have. The appellee points out that Ms. Fontenot waived only her claim for “present alimony” at the time the contract was actually executed. Therefore, the ap-pellee contends, the appellant reserved her rights to alimony subsequent to the execution of the contract and cannot constitute consideration for the payments. In short, the appellee contends that as long as the payments were made, the appellant had no claim for back-accrued alimony but that either party could withdraw from this arrangement at any time.

In support of his argument the appellee cites Succession of Vidalat, 155 La. 1005, 99 So. 801 (La.1924). In Vidalat, supra, the parties stipulated in their partition agreement that the husband would pay to his ex-wife $7.00 per week for the remainder of her life. When the payments were ceased a suit ensued and the La. Supreme Court held that the payments were an unenforceable gratuity. Vidalat, supra, however, is not squarely on point because that agreement does not purport to exchange payments for any type of waiver of the right to alimony as the case at bar does. In short, the agreement in Vidalat made no mention of any consideration while the partition agreement in this case does. Therefore, Vidalat is of no real use in deciding the issue of this case.

Because we find that the disputed contractual provision is susceptible to two conflicting but reasonable interpretations, one which provides for a fixed term of thirty-six monthly payments of $1,500.00 in exchange for a waiver of alimony for thirty-six months, and the other which provides for a continuous exchange of the waiver of alimony while the gratituity payments are forthcoming, we find this provision to be ambiguous. Ambiguous phrases in contracts are strictly construed against the party who prepared the contract and also in doubtful cases, the interpretation goes against the obligor. La.C.C. arts. 1957 and 1958. Par-Co. Drilling, Inc. v. Franks Petroleum, Inc., 360 So.2d 642 (La.App. 3rd Cir.1978); Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir.1980). The evidence in the record establishes that Mr. Klumpp’s attorney prepared the partition agreement and submitted it to Ms. Fontenot for her approval and signature after she consulted her own attorney. In light of this fact we are compelled to adopt the interpretation most favorable to the plaintiff. Accordingly we hold that the defendant, Mr. Klumpp, is contractually obligated to pay Ms. Fontenot $1,500.00 for a period of thirty-six months unless Ms. Fontenot remarries as per the provisions of the contract.

It should be noted that this rehabilitative arrangement in exchange for a waiver of alimony pendente lite is not contrary to public policy and the principles of law laid down in Holliday v. Holliday, 358 So.2d 618 (La.1978). In Holliday, the La. Supreme Court said that the waiver of alimony pendente lite without other alternative means of support is contrary to public policy and an absolute nullity. The basis for this decision is that the legal obligations of marital support cannot be waived. In this case however, the waiver is accompanied by a substitution of the means of support of alimony pendente lite with these rehabilitative payments. Therefore the public policy of marital support is not contravened by this contract and the provisions effecting this substitution is not a nullity.

For the foregoing reasons the judgment of the trial court is reversed. It is hereby ordered and decreed that defendant-appellant pay the accrued amount of outstanding payments plus judicial interest. The cost of this appeal is to be paid by the defendant-appellee.

REVERSED.

LABORDE, J., concurs in the result.


text:
    EXECUTIVE RECRUITMENT, INC. v. REED AND CARNRICK PHARMACEUTICALS.
    No. CA-3134.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    Clarence F. Favret, III, Favret, Favret, Demarest & Russo, New Orleans, for plaintiff-appellant.
    Anne B. Holton, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appel-lee.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   BARRY, Judge.

Ex proprio motu we questioned jurisdiction over this appeal from the First City Court of New Orleans. Judgment was signed May 1, 1984. Notice of signing of judgment was mailed the same day. A motion for new trial was filed on May 9, 1984. This motion was denied on July 27, 1984. The appeal was filed August 3,1984.

La.C.C.P. Art. 4901, at the time of judgment in this matter, provided:

Except as provided for the appellate delay in appeals by Article 5003, the procedure in parish and city courts in cases where the amount in dispute exceeds three thousand dollars shall be the same as that provided by law for a civil case in the district court of the parish or city court is situated.

Plaintiffs suit was for $3,420.00. Therefore, the provisions of Art. 4901 applied.

Plaintiff argues that since Art. 4901 only makes reference to Art. 5003, and not Art. 4919 (the article which gives a 3-day period for applying for a new trial in city court), Art. 1974 (the article which gives a 7-day period for applying for a new trial in district court) should apply. Under that article, his motion for a new trial was timely. We agree.

Art. 4901 makes reference only to Art. 5003, otherwise the rules of procedure for district court apply. Art. 4902, which involves cases where the amount in dispute exceeds $500.00 but is less than $3,000.00, expressly applies articles 4911-4920. Thus in those cases it is clear that Art. 4919 applies and not the rules of procedure for district court.

The omission of a reference to Art. 4919 in Art. 4901 is significant. Appeals are favored in the law and any reasonable doubt must be resolved in favor of preserving an appeal. In the present case our interpretation of Art. 4901 is consistent with this principle. We deny our motion.


author: SAVOIE, Judge.

text:
    Linda COLEMAN v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Family Security.
    Nos. 83 CA 1304, 83 CA 1305.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Robert F. Smith, Baton Rouge, for plaintiff-appellant.
    Sidney W. Hall, Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for H. Sumrall.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

This is an appeal from two decisions of the State Civil Service Commission. The Commission upheld the suspension and termination of Linda Coleman, a Food Stamp Eligibility Worker II, for a violation of La.R.S. de^CA). The Commission found that Coleman gained information from a client within the course and scope of her duties as a Family Security Eligibility Case Worker and used this information in a private financial transaction with the client by which Coleman was enriched. We affirm.

Coleman was a case worker for a client in Greensburg, Louisiana. The Commission made the following findings of fact. In early December, 1981, Coleman and the client met in Coleman’s office, for the purpose of discussing the client’s food stamp eligibility. During the course of this meeting, Coleman became aware of a letter to the client concerning the fact that the client had not made mortgage payments for approximately one year. Coleman then offered to discuss this situation with Coates Credit Company, the holder of the mortgage on the client’s home. Sometime early that afternoon, Coleman spoke with Mr. Warren Coates, the owner/manager of Coates Credit. Coates informed Coleman the client had not made a mortgage payment in approximately one year and that there remained an unpaid balance on the client’s account of approximately $2,600.00. Coates also indicated that he was preparing to initiate foreclosure proceedings. Coates suggested that Coleman could help the client by purchasing the client’s home.

After this conversation, Coleman spoke with the client and suggested that the client sell her the house. She further proposed to rent the property to the client in order to allow her to continue to live on the property. The client did not ask Coleman to purchase her property. On December 16, 1981, Coleman and the client executed an act of cash deed conveying to Coleman the property and the house in which the client lived.

In January, 1982, the client’s daughter reported to another Eligibility Worker that Coleman had purchased the client’s house. Coleman’s supervisor began an investigation of the matter. On June 22, 1982, a letter was sent to Coleman which suspended her indefinitely beginning June 30, 1982. On October 26, 1982, Coleman was sent a letter which informed her that she was being terminated as of October 27, 1982. The letter stated she was being terminated for making use of information gained by virtue of her position as an Eligibility Worker for purposes not directly connected with the administration of the Food Stamp Program when she purchased a client’s property in December, 1981. This was alleged to be in violation of La.R.S. 46:56(A). The letter also stated that she failed to report rent paid by the client on a Budget form, which would have affected the client’s food stamp allotment. The letter further gave as a reason for termination that she disregarded the rules and regulations of the department. Because we find that the alleged violation of La.R.S. 46:56(A) is dispositive of this appeal, we need not address the other reasons stated in the letter.

A reviewing court is not to disturb the factual findings of the trier of fact in the absence of manifest error. Allen v. DHHR, Ruston State School, 426 So.2d 234 (La.App. 1st Cir.1983). The record amply supports the finding that Coleman purchased the client’s property subsequent to meeting with the client in Coleman’s office. The record shows that Coleman purchased the house for approximately $2,600.00, and immediately thereafter used the property as security for a loan, by encumbering it with a mortgage for $6,000.00. Coleman thus enriched herself on the basis of information which came to her attention pursuant to her official duties.

Coleman argues that because the client record contains no written statement that the client was in default on any of the payments to Coates, she cannot have “made use of” information contained therein. This argument is fallacious for at least two reasons. First, the record contains a payment card which shows that only two payments of $120.89, have been paid on a loan with a beginning balance of $2,901.36. This is evidence that would put someone on notice that a sum was owed. Secondly, it is not contradicted that the client told Coleman that money was owed on the property while in Coleman’s office'on official business. Information gained from speaking with a client is entitled to the same protection of confidentiality as is a written record. This is especially true in light of the fact that it was Coleman’s responsibility to make what the client orally relates to her a part of the written case record. For these reasons, the above argument has no merit.

It is beyond question that the relationship between Coleman and the client was one in which trust was a vital factor. In order to apply for food stamps, the client must divulge highly personal information regarding his or her financial condition. It would be intolerable to allow someone in this position of trust to use this position for personal enrichment. The facts of this case show that La.R.S. 46:56(A) was violated, and this is adequate cause for the employee’s termination.

Cause for disciplinary action is found if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Department of Corrections, Hunt Correctional Center v. Murray, 439 So.2d 484 (La.App. 1st Cir.1983). Here, confidential information was used for the personal gain of Linda Coleman at the expense of her client. Such action was disruptive of the orderly operation of the Greensburg, Louisiana Food Stamp Office. The conduct of Linda Coleman warrants termination.

For the above and foregoing reasons, the decisions of the Civil Service Commission are affirmed, at appellant’s costs.

AFFIRMED.

      . La.R.S. 46:56(A):
      A. Applications fof assistance and information contained in case records of clients of the Department of Health and Human Resources shall be confidential and, except as otherwise provided, it shall be unlawful for any person to solicit, disclose, receive, make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of applications or client case records or the information contained therein for any purpose not directly connected with the administration of the programs of the department. (Emphasis ours).


author: GROVER L. COVINGTON, Chief Judge.

text:
    John McKELLER v. LOUISIANA STATE UNIVERSITY, PHYSICAL PLANT.
    No. CA 83 1316.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Kenny L. Riley, Baton Rouge, for plaintiff-appellant.
    William A. Norfolk, Robert R. Boland, Jr., Dept, of Civil Service, Baton Rouge, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

John McKeller, a Building Maintenance Superintendent III with the electrical department at Louisiana State University in Baton Rouge, was dismissed from his permanent position on March 6, 1981. The letter of termination charged him with 1. Poor attitude; 2. Failure to familiarize himself with the campus electrical system; 3. Failure to accomplish work assigned to his department in a timely manner; and 4. Improper handling of paperwork.

McKeller appealed his dismissal to the Louisiana Civil Service Commission, which conducted a public hearing before a referee appointed by the Commission on February 26, 1982 and on March 3, 1982, in Baton Rouge. From a decision of the Commission upholding the appointing authority’s action, McKeller has appealed, and we affirm.

FACTS

In 1978 McKeller was hired as Building Maintenance Superintendent III with the electrical department at the L.S.U. Physical Plant in Baton Rouge. A job description of his duties included the requirement that he be available on a twenty-four hour basis to direct and supervise the repair of electrical utility breakdowns of an emergency nature, that he make repairs within his ability as an electrician, that he assign and direct work crews and obtain replacement parts in order for repairs to be timely made, and that he • review and approve reports and invoices so that parts and supplies could be ordered by his department and paid for by the L.S.U. accounting department. The Commission found the following facts to support the charges upon which his dismissal was based.

1. Poor Attitude

Based on the following facts, the Commission concluded that the appointing authority had borne the burden of proving that McKeller failed to make himself available for emergency electrical calls and that he exhibited a poor professional attitude in dealing with other employees of the Physical Plant and toward his work.

On April 15, 1980, there was an electrical fire in one of the coolers at the L.S.U. Union. The Preventive Maintenance Department (hereafter called PM Dept.) was contacted at about 4:00 p.m. on that day and asked to restore power as soon as possible, because the cooler contained a large quantity of food. Since the personnel of PM Dept, were not electricians, they were unable to solve the problem and telephoned McKeller to get the power restored. McKeller responded by instructing them to try to restore power to the cooler; and, if unsuccessful, to move the food to another cooler until the next day when he could get the parts to repair the cooler. McKeller declined to go to the L.S.U. Union to determine the cause or extent of the damage to the cooler, or whether it was necessary to obtain parts to restore power to the cooler. It was not until the next day that the cooler was repaired.

On Saturday, April 19, 1980, at about 5:00 p.m., a power failure occurred causing outages to street lights and to several buildings on campus. Mr. Richardson, the Maintenance Supervisor in PM Dept, then on duty, was called on to restore power to the area. He tried, without success, to reset the electrical feeders that supply power to this area. Finally, he called McKeller’s home for assistance, but was unable to contact McKeller. McKeller’s wife answered the phone. Richardson related the problem to her and waited for McKeller to come to the phone. McKeller did not come to the phone or send a message by his wife. Thus, appellant was unavailable and was not heard from during the emergency situation. Other arrangements to remedy the situation had to be made.

On Saturday, August 2, 1980, the Circulation Department of the L.S.U. Main Library experienced a power failure. After PM Dept, personnel tried, unsuccessfully, to restore power, McKeller was telephoned. He declared that the outage was not an emergency, and would not have the power restored until the next day despite the fact that the Circulation Department is responsible for processing all incoming and outgoing books and was unable to function without lights.

In April, 1980, two electricians under McKeller’s supervision, were designated to assist a pump crew which had been assigned to check all pumps on campus. At .the same time, another electrical crew was assigned to repair a pulley needed to lift a basketball goal. (The goal was lying across the pole vault area, and a track meet was scheduled in a few days.) The electrical foreman called Central Shops to make a bushing needed to repair the pulley to lift the goal. Central Shops could not make the bushing at that time because the personnel needed to make the bushing were working with the pump crew. McKeller reacted by pulling the two electricians assigned to the pump crew off the job in retaliation for Central Shop’s failure to make the bushing. The lack of cooperation and assistance by the electricians caused unnecessary problems and delays for the accomplishment of the work of the pump crew.

At one of the daily meetings, McKeller told the Director of the Physical Plant that he had more important things to do than bother with paperwork. His attitude toward this important duty of his job was further illustrated by his tardiness in attending a seminar, which was specifically conducted to inform and educate supervisors on the proper handling of paperwork for the department and his day-to-day handling of paperwork.

2. Failure to Familiarize■ Himself With the Campus Electrical System

Based on the following facts, the Commission found that the appointing authority had borne its burden of proving that McKeller failed to familiarize himself with the campus electrical system.

In May of 1980, McKeller had to call upon the Superintendent of the electrical department to repair a power outage at the Life Science Building which had occurred about four hours earlier. The Superintendent arrived on the scene and found that a bus-bar had tripped the circuit breaker, which he then easily reset and restored the power. McKeller had not bothered to familiarize himself with the electrical system so that he could cope with a routine situation.

On July 15,1980, the Superintendent was summoned to restore power to the Nicholson Drive Apartments. Upon arriving at the Apartments, he discovered a loose wire on one of the electrical poles, which he routinely repaired.

3. Failure to Accomplish Work Assigned to His Department

Based on the following facts, the Commission found that the appointing authority had borne its burden of proving that McKeller failed to accomplish work assigned to his Department.

One of the responsibilities of his job was to order and receive supplies and do the proper paperwork in connection therewith. On May 7, 1980, the electric circuit breaker for the chillers at the Field House failed. The Assistant to the Director of the Physical Plant, reported this failure to McKeller. Power was restored to the chillers the next day by by-passing the old circuit breaker that needed repairing, which constituted a temporary repair. McKeller did not get around to ordering the parts for making permanent repairs to the circuit breaker until three months later, although the “repair” created a risk of outage or electrical fire.

In September, 1979, a circuit breaker for the condenser water pump at the CEBA Building failed. McKeller neglected to order a new breaker until February 13, 1980.

McKeller failed to make proper arrangements to ascertain that lights outside the Law School Auditorium would turn on for the occasion when an important visiting dignitary was to speak at the School. When the event was held, the lights would not turn on and could not be taken care of because McKeller did not perform his specifically assigned work.

4. Improper Handling of Paperwork

Based on the following facts, the Commission found that the appointing authority had borne its burden of proving McKeller failed to handle properly the paperwork of the Department.

On October 25, 1979, May 22, 1980, May 29, 1980 and August 14, 1980, the Staff Assistant in charge of accounting at the Physical Plant, discussed the procedures for handling the necessary paperwork of the department in meetings which were attended by McKeller and other supervisory personnel. When McKeller was spoken to individually concerning paperwork, he said he was not hired to do paperwork. Numerous complaints were made concerning McKeller’s inattention to and neglect of the necessary paperwork for purchasing supplies, and several suppliers threatened to discontinue supplying L.S.U. Physical Plant unless the paperwork was properly processed so that they could be promptly paid. Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962).

Our review of the record herein convinces us that McKeller was discharged for legal cause. Each and every reason assigned for appellant’s dismissal was established by a preponderance of the evidence. Dundy v. Louisiana State University in Baton Rouge, 394 So.2d 650 (La.App. 1st Cir.1980). A real and substantial relationship existed between each act of improper conduct and the efficient operation of the department. Viator v. City of New Iberia, 428 So.2d 1329 (La.App. 3rd Cir.1983).

The appointing authority has proven the charges against McKeller by a preponderance of the evidence, and thus was within its rights in dismissing John McKeller for the causes hereinabove mentioned.

The ruling of the Commission upholding the appointing authority’s termination of the appellant is affirmed at his costs.

AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana v. Willie Ware CLARK.
    No. KA 83 1326.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Aubert D. Talbot, Dist. Atty., Napoleon-ville, Malcolm J. Dugas, Asst. Dist. Atty., Donaldsonville, for the State, Appellee.
    N. Joseph “K-9” Nash, III, Legal-Advis- or, for defendant Willie Ware Clark.
    Willie W. Clark, in pro. per.
    Benjamin C. Vega, Jr., Atty., Donaldson-ville, for defendant-appellant.

      Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   PER CURIAM.

Defendant, Willie Ware Clark, was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced on June 13, 1983, to imprisonment for eight years at hard labor, without benefit of probation, parole or suspension of sentence.

On October 14, 1983, defendant filed a “Motion for Out-of-Time Appeal” with the district court. The district court granted the motion ex parte, ordering the appeal returnable to this Court on November 13, 1983.

For the reasons explained in State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984) the trial court was without authority to grant an out-of-time appeal ex parte due to a lack of jurisdiction. Therefore, this matter is dismissed. Defendant’s proper remedy is as noted in State v. Davis, supra.

APPEAL DISMISSED.


text:
    N.A. “Red” MASON v. STAUFFER CHEMICAL COMPANY.
    No. 83 CA 1338.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    See also, La.App., 451 So.2d 32.
    A. Wayne Stewart, Denham Springs, for plaintiff-appellee.
    L. Michael Cooper, Baton Rouge, for in-tervenor-appellee.

      Charles Raymond, Baton Rouge, for defendant-appellant.
    William R. D’Armond, M. O’Neal Walsh, Baton Rouge, for defendant-appellee.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Terotechnology Corporation appeals the trial court’s grant of summary judgment which dismissed its third party demand against appellee, American Manufacturers Mutual Insurance Company. We reverse.

Plaintiff, N.A. “Red” Mason, was employed by Terotechnology, a subcontractor of Stauffer Chemical. Mason was injured while working for Terotechnology on a job under contract with Stauffer. Mason sued Stauffer, alleging that Stauffer’s sole negligence was the cause of his injury.

Stauffer filed a third party demand against Terotechnology for- costs of defense and indemnification pursuant to an indemnification agreement between the two. Terotechnology answered, denying responsibility under the indemnification agreement, reconvening against Stauffer and bringing a third party demand against its insurer, American Mutual, for failing to provide a defense pursuant to their insurance contract.

American Mutual filed a motion for summary judgment, arguing that coverage was excluded under the allegations of the original plaintiff’s petition. The trial court granted the summary judgment and dismissed Terotechnology’s third party demand against American Mutual. Terotech-nology appeals the trial court’s decision.

Stauffer, in its third party demand against Terotechnology, alleged that the negligence or fault of another was the cause, in whole or in part, of the accident. This allegation was the basis for Stauffer’s demand for indemnification by Terotechriol-ogy under the Stauffer-Terotechnology indemnity agreement.

Terotechnology’s claim against American Mutual is based on the following provisions of their insurance policy:

“The company will pay on behalf of the insured all sums which the insured by reasons of contractual liability assumed by him under a contract designated in the schedule for this insurance, shall be legally obligated to pay as damages because of bodily injury and property damage ... the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if the allegations of the suit are groundless, false or fraudulent ...”

The trial court based its decision on Mason’s petition which alleged that his injury was due to the sole negligence of Stauffer. The trial court ruled that Terotechnology was not liable for indemnification to Stauf-fer under the allegations of Mason’s petition and, therefore, American Mutual had no obligation to defend Terotechnology.

The issue on appeal is whether American Mutual had an obligation to defend Tero-technology against Stauffer. American Mutual argues that American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (La.1969) is applicable in this instance. In Czarniecki, the Supreme Court stated that the insurer’s duty to defend its insured is determined by the allegations of the injured plaintiff’s petition. The present case is distinguishable from Czarniecki in that the cause in Czarniecki was in tort, whereas the action between Stauffer and Terotechnology is in contract.

American Mutual’s obligation to defend is governed by Stauffer’s third party demand against Terotechnology, the indemnification agreement between Stauffer and Terotechnology and the policy of liability insurance between American Mutual and Terotechnology. Thus, the controlling petition is Stauffer’s third party demand against Terotechnology. The trial court erred in basing its decision on the Mason petition since it does not directly affect the resolution of this issue.

The insurer’s obligation to defend its insured is broader than its liability for damages. The allegations of the third-party plaintiffs petition determine whether the insured has a duty to furnish a defense unless the petition unambiguously excludes coverage. See Czarniecki, 230 So.2d at 259; and Schilling v. Bigelow Liptak Corp., 427 So.2d 452 (La.App. 1st Cir.1982), writs denied, 433 So.2d 181 (La.1983). Stauffer’s demand against Terotechnology does contain allegations which, if proven, subject Terotechnology to liability under the indemnification agreement. Hence, Terotechnology has the right to call upon American Mutual to provide a defense pursuant to the provisions of the insurance policy.

Accordingly, the judgment of the trial court is reversed and the matter is remanded. Appellee is to pay all costs of this appeal.

REVERSED AND REMANDED.

      . A copy of the indemnification agreement was not in the record. •


author: EDWARDS, Judge.

text:
    Andre SHARPE, his wife Linda F. Sharpe, Sears, Roebuck & Company and Allstate Insurance Company v. CLAIBORNE ENTERPRISES, INC., d/b/a the Claiborne Hill Tire Center and The Maryland Casualty Company.
    No. 83-CA-1341.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied Feb. 15, 1985.
    Andrew Hamlin, Metairie, for Maryland Cas. Co., defendant, appellee.
    Robert 0. Homes, Gulfport, Miss., for plaintiffs, appellants.
    C.T. Williams, Jr., Metairie, for Claiborne Hill, third party plaintiff.

      Ivan D. Warner, III and Kenneth C. Hughes, New Orleans, for third party defendants, Appliance Industries, Inc.
    Richard S. Yale, Metairie, for Claiborne Hill.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

From a judgment sustaining the defendants’ peremptory exception of prescription, plaintiffs appeal. We affirm.

Sometime in 1972, Claiborne Enterprises, Inc., (Claiborne), d/b/a The Claiborne Hill Tire Center in Covington, Louisiana, sold to Andre Sharpe four mag wheels and mounted them on to his 1971 Ford truck. Four years later, in the summer of 1976, before leaving for a trip to Disney World in Florida, Mr. Sharpe had a local Sears Automotive Store rotate the tires. On the return trip home, on or about June 4, 1976, Mrs. Sharpe, who was driving, lost control of the truck when the left rear wheel fell off as she approached the Escambia Bay bridge a few miles west of Milton, Florida. The truck turned over several times. Mr. and Mrs. Sharpe sustained serious injuries.

In 1977, the Sharpes filed suit in federal district court against Sears, Roebuck & Company and its insurer, Allstate Insurance Company, for the alleged negligent rotation of the tires. On the first day of the trial, however, the Sharpes settled with Sears and Allstate for an undisclosed amount. Then, on June 20, 1980, with Sears and Allstate joining as subrogees for the settlement amount, the Sharpes filed this suit against Claiborne and its insurer, Maryland Casualty Company, for Claiborne’s alleged negligent installation of the four mag wheels back in 1972.

After filing an answer denying liability, Claiborne filed a third party demand against Sears and Allstate and also against Appliance Industries, Inc., the manufacturer of the mag wheels. Appliance filed a peremptory exception of prescription against Claiborne, and Claiborne and Maryland each filed one against the plaintiffs, on the ground that plaintiffs’ suit, filed more than a year after the accident, had prescribed. A trial judge temporarily sitting in for the district judge referred the exception to the merits. When the district judge returned, Claiborne filed a second exception. After a hearing, the district judge rendered judgment maintaining the exception and dismissing plaintiffs’ suit. From this judgment, plaintiffs appeal.

The issue is whether plaintiffs’ action is subject to a one year or a ten year prescriptive period.

Actions for damages caused by the breach or negligent execution of construction or installation contracts, in which the principal obligation is one to do or not to do, prescribe in ten years. LSA-C.C. art. 3499 (former art. 3544 before its amendment by Acts 1983, No. 753, § 1, effective January 1, 1984); Kegler’s, Inc. v. Levy, 239 So.2d 450 (La.App. 4th Cir.), cert. denied 256 La. 1150, 241 So.2d 253 (1970); Yeargain v. Blum, 144 So.2d 756 (La.App. 4th Cir.1962). Actions for damages caused by delictual conduct or by redhibitory defects in things sold prescribe in one year. LSA-C.C. arts. 3492 (former art. 3536 before its amendment in 1983) and 2534. Moreover, the character of the action determines the applicable prescriptive period. American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466, 469 (1930). Since the record does not contain a transcript of the hearing on the exception, the character of the action must be determined from an examination of the pleadings.

In their petition, plaintiffs allege that “Andre Sharpe, purchased four ‘Appliance Mag Wheels’ from defendant, Claiborne Enterprises, Inc., at its Covington store and said defendant installed the magwheels on the plaintiffs’ vehicle in an improper and dangerous manner including but not limited to failing to remove the steel keepers from the lug studs of the two rear wheels on said vehicle at the time of the installation.” They further allege that “the above described accident was caused solely and proximately by the breach of contract and a breach of warranty of fitness by the defendant, Claiborne Enterprises, Inc., by virtue of the improper installation of the mag wheels as described above.” Plaintiffs contend that these allegations characterize the 1972 transaction as both a contract of sale and a contract to install four mag wheels. Accordingly, the failure to remove the steel keepers constituted a negligent breach of the installation agreement, giving rise to a breach of contract claim for personal injury damages.

Defendants, on the other hand, contend that, besides their alleged delictual liability, any contractual liability they have is governed by the sales articles on redhibition because the principal obligation of the contract was that of sale.

In every case which we have reviewed involving the characterization of sales and service contracts (and the cases are legion beginning with Hunt v. Suares, 9 La. 434 (1836), whether the issue involved ownership, risk of loss, or damages for negligent breach or execution of the contract), regardless of whether plaintiff also had a claim in tort, the principal obligation of the contract determined its characterization. E.g., American Heating & Plumbing, 131 So. 466; Peak v. Cantey, 302 So.2d 335 (La.App. 1st Cir.1974); Tiger Well Services v. Kimball Production Co., 343 So.2d 1153 (La.App. 3d Cir.1977); Jefferson Parish School Board v. Rowley Co., Inc., 305 So.2d 658 (La.App. 4th Cir.1974); Transportation Equipment Co., v. Younger Bros., 34 So.2d 347 (Orl.App.1948); cf. FMC Corp. v. Continental Grain Co., 355 So.2d 953 (La.App. 4th Cir.1977) (where the court did not characterize the contract, but said in dicta that if it had, it would have characterized it as a contract of sale because the obligations to give and to do were inseparable).

We are not convinced by the allegations of plaintiffs’ petition that Claiborne entered into an installation contract with Mr. Sharpe. The principal obligation of the contract was the sale of the mag wheels. The fact that Claiborne undertook to install them on the truck incidental to the sale does not change the transaction from that of a sales contract to an installation contract. “The mere fact that an obligor may be involved in the installation and delivery of the equipment will not change the characterization of the obligation from that of a sales contract and therefore the rules governing a sale will control.” Tidewater, Inc. v. Baldwin-Lima Hamilton Corporation, 410 So.2d 355, 357 (La.App. 4th Cir.1982).

In Rey v. Cuccia, 298 So.2d 840 (La.1974), the supreme court held that the improper installation of a trailer hitch in connection with the sale of a trailer constituted a defect in the trailer, entitling plaintiff to a redhibitory action. Since the principal obligation of the contract in this case is the sale of the mag wheels, under Rey v. Cuccia the improper installation of these wheels incidental to the sale is a redhibi-tory defect. Therefore, plaintiffs’ action is best characterized as an action in redhibition, subject to a one year prescriptive period, and not an action for breach of an installation contract. Accordingly, the trial judge correctly held that plaintiffs’ suit had prescribed.

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Brenda Lee BALLARD v. YOUNGER TRANSPORTATION, INC., et al.
    No. 83 CA 1351.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Haydn S. Berey, Livingston, for plaintiff-appellee.
    Charles A. O’Brien, III, Baton Rouge, for defendants-appellants.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

Brenda Lee Ballard (plaintiff), brought suit against Younger Transportation, Inc., her employer, for workers’ compensation benefits, alleging that she became totally and permanently disabled from the performance of her trade after sustaining an injury while on the job. Plaintiff was employed by defendant as a “hot-shot” driver and sustained an injury to her back while lifting the tailgate of her truck on February 7, 1981.

The trial court found plaintiff to be totally and permanently disabled under the odd lot doctrine, found that defendant was arbitrary, capricious and without probable cause in its termination of payments of benefits to her, and awarded compensation, penalties and attorney fees. Defendant appealed, assigning as error the trial court’s application of the odd lot doctrine and the award of penalties and attorney fees.

A hot-shot driver is a courrier, hired to drive a truck and deliver supplies and equipment as directed. The drivers accept calls from a dispatcher and are expected to make deliveries ranging from as short as ten miles to overnight trips to other states. The driver only drives to the destination; he does not load and unload the heavier supplies being delivered. We note, however, that plaintiff stated that “we were told it was best if we did help.” However, the basic physical functions required to complete the job appear to be only those incident to driving a vehicle.

Plaintiff testified that upon being injured, she experienced a sharp pain with “burning” and “stiffness” between her shoulder blades, and her back, and in her legs. She claims she is now totally incapable of carrying on the activities she enjoyed before the accident such as playing ball, mowing the grass, going fishing and cleaning the house. Her pain is exacerbated by holding one position for a long time, such as lying down or standing. Plaintiff’s roommate, Brenda Allen, corroborated plaintiff’s complaints of pain after the accident and her resultant inactivity.

The first physician seen by plaintiff after her accident was Dr. Melvin Robinson, plaintiff’s family physician. She saw him for examinations on February 9, 13, 20, March 12 and 27, 1981. Dr. Robinson’s examinations revealed mid-back strain with upper lumbar and lower thoracic strain. He also found that she was experiencing right sciatica pain and her straight-leg-raising tests were positive bilaterally. Dr. Robinson noted tenderness and spasm extending down the right sciatic nerve. However, he found no bony injury and no narrowing of disc spaces. He treated her with muscle relaxants and pain relievers and referred her to Dr. Willard Dowell, an orthopedic surgeon.

Dr. Dowell’s examination on April 6, 1981, revealed tenderness to the right of plaintiff’s lumbosacral joint and positive straight-leg-raising tests. He diagnosed a sprain of the lower back with a possible disc problem, but his x-rays of the lumbo-sacral region revealed no evidence of bony injury. On August 13, 1981, plaintiff was again seen by Dr. Dowell. He noted that she had complaints in more areas than before; most notably, tenderness in the dor-solumbar region rather than the lumbo-sacral region. He repeated his x-rays and again found them negative and felt that her shoulder area pain was unrelated to her back problem. Dr. Dowell did note that she did have weakness in her big toe extensor and loss of sensitivity to a pin prick test. He’found it inconsistent with her other complaints that she also experienced pain when performing a leg maneuver used to detect hip disease.

Plaintiff was then referred to Dr. James A. Poche, a neurosurgeon, who examined her on September 26, 1981. He noted in his report that plaintiff complained of pain to the posterior section of her right leg and noted a limp favoring the right leg. He noted positive results on the right to the straight-leg-raising tests he performed. Dr. Poche performed a myelogram and found a bulging disc at L-5/S-1 level. On October 5, 1981, he performed a lumbar lamenectomy on plaintiff. His status report was entered as a joint exhibit at trial and reveals that plaintiff was doing well on December 7, 1981, and on February 2, 1982, he reported that she was “doing fine” and discharged her from his care with a permanent lifting restriction of thirty pounds.

Plaintiff next saw Dr. Robert Hanchey, a neurosurgeon, in March of 1982. His report and deposition were entered at trial, and both are entirely unfavorable to plaintiff. From her description of her pain, he called it “diffuse,” saying that pain resulting from a disc problem is usually well defined and consistent and that her descriptions were consistent with it being “hysterical” (psychological). He noted that she complained of her legs giving out and found this unusual when not accompanied by pain. He conducted a heel-toe walking examination which indicated non-physiologic pain, and got a positive result to the straight-leg-raising test when she was lying down, but a negative result when he had her sit up and perform the same test without her knowing she was performing that test. Dr. Hanchey found all of her maneuvers exaggerated and found no functional disability. He also found no spasm in his examination. His report notes that he thinks that the best way for her to recover from her pain is to end her lawsuit.

Plaintiff saw Dr. Edward S. Connally, an orthopedic surgeon, on April 8, 1982, primarily complaining of low back pain with some upper back pain between her shoulder blades. He noted in her x-rays a narrowing at the C-5/C-6 level and said this is usually attributable to a disc problem; however, chances are it pre-existed the February, 1981, trauma. His straight-leg-raising test was conducted to 80° bilaterally, a finding he considered negative. He found a 10% disability, which he considered “no functional disability.” Dr. Connally noted that it is unusual to have pain first in the cervical area and then moving down to the lumbar area. He said plaintiff does not have the symptoms of a ruptured cervical disc.

Dr. John G. Andrew, an orthopedic surgeon in Houston, saw plaintiff on May 13, 1982, and she had no pain on bending or flexing her lumbar spine, no spasm, no tenderness and no neck complaint through a full range of motion. His straight-leg-raising tests were negative. He related her shoulder pain to muscle strain, and found no functional disability.

None of these physicians testified at trial. Their depositions were entered in lieu of testimony.

Dr. Edward Gavin, a chiropractor, did testify at. trial. He first saw plaintiff on August 19,1982, and treated her at approximately 26 visits through September 14, 1982. He found spasm in the muscles of the cervical, thoracic and lumbar spine, a positive straight-leg-raising test at 65° and some spurring of the vertebrae at C-5/C-6 which he attributed to an old disc injury. In his opinion, her injuries were a result of the accident, and he classified plaintiff as totally disabled at the time of trial. He recommended she should stay at home, rest and not do any work.

The issue of pain experienced by a claimant seeking compensation benefits is a question of fact to be resolved by the trier of fact on the basis of the preponderance of the medical and lay evidence. Dauzat v. Gregory and Cook, Inc., 454 So.2d 807 (La.1984): Smith v. Union Underwear, Inc., 457 So.2d 248 (La.App. 3rd Cir.1984). When the factual issue is the severity of pain suffered by the claimant, the trial court’s conclusions must be based on its evaluation of the claimant’s testimony because in the final analysis the plaintiff is the only one capable of describing his pain. Smith, 457 So.2d at 250; Kraemer v. Louisiana Power and Light Company, 393 So.2d 346 (La.App. 1st Cir.1980). The factual conclusion reached by the trial court that plaintiff suffers substantial pain is not clearly wrong and will not be disturbed on appeal. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

However, to qualify for compensation benefits under the odd lot doctrine, a claimant must also prove that because of his physical impairment and other factors, such as mental capacity, education and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980); Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983).

After reviewing the testimony we are not at all convinced that plaintiff has shown she “can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist.”

Lorettarea Cayard testified at trial as a vocational rehabilitation expert. She was of the opinion that plaintiff was capable of returning to gainful employment but that her attitude was that she did not wish to return to work. Cayard thought plaintiff would be able to return to her duties as a hot-shot driver and through her testimony demonstrated a good understanding of the duties of a hot-shot driver. She reported that this job was available to plaintiff at all times during her counseling of plaintiff but that plaintiff did not seem to want to discuss going back to work when she talked with Cayard.

Plaintiff is a high school graduate who held jobs such as department store cashier and meat packing plant worker before her accident. She felt she could not resume these jobs, but we note the depositions of the three orthopedists who saw plaintiff after the surgery and found little, if any, functional disability. The trial court erred in finding plaintiff totally and permanently disabled under the odd lot doctrine without more proof of the limitation of her services in quality and dependability, and the existence of reasonably stable markets for those services.

Once the worker establishes that he falls into the odd lot category, however, he is entitled to total, permanent disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to the worker’s residence. Turner v. American Mutual Ins. Co., 390 So.2d 1330 (La.1980). Other than the testimony of Cayard, the record is devoid of evidence of the availability of suitable work.

Based upon the foregoing, we find that the just resolution of this claim requires that we remand for further proceedings to determine whether plaintiff, because of her substantial pain and other factors such as mental capacity, education, and training, can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist, or whether some form of suitable work is available to plaintiff. Turner, 390 So.2d at 1331-2; see also Shatoska, 430 So.2d 1255, and Poland v. American Mutual Ins. Co., 409 So.2d 1292 (La.App. 2nd Cir.1982). If it is found that plaintiff cannot perform the same work that she did before her injury because it would cause her substantial pain, but she has the mental capacity and physical capacity to perform other jobs which are available, she should be considered partially disabled under the substantial pain doctrine and appropriate benefits awarded under La.R.S. 23:1221(3), Dauzat, 454 So.2d 807, and Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). The award of penalties and attorney fees is hereby vacated and our consideration of the issue postponed until it is properly brought before us on appeal, should it be made a part of the trial court’s judgment on remand. Costs of this appeal are taxed to defendant.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.


author: JOHN S. COVINGTON, Judge Pro Tem.:

text:
    Robert Joseph CADIERRE, Sr. and Melda Brown Cadierre v. Theresa DUET, in her capacity as the natural tutrix of the minor child, Perry J. McKee, Louisiana Farm Bureau Mutual Insurance Company, United States Fidelity and Guaranty Company, Progressive American Insurance Company, Louisiana Companies, Saint Joseph’s Catholic Church, the Roman Catholic Church of the Diocese of Houma-Thibodaux, United States Fidelity and Guaranty Company.
    No. 83 CA 1352.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      David B. Allen, Houma, for plaintiff-appellant.
    Robert D. Morvant, Christopher H. Rivi-ere, Thibodaux, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial' District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

      . The trial court did not make a factual determination as to McKee’s negligence, but we find such conclusion amply supported by the evidence and undisputed by defendants.

   JOHN S. COVINGTON, Judge Pro Tem.:

This is a suit for damages brought by the parents of a motorcycle passenger, Robert J. Cadierre, Jr., who was killed in a 1979 collision with an automobile driven by an intoxicated minor, Perry J. McKee. Plaintiffs filed suit against McKee’s mother, Theresa Duet (Duet); her automobile liability insurer, Louisiana Farm Bureau Mutual Insurance Company (Louisiana Farm Bureau); Progressive American Insurance Company (Progressive), issuer of an insurance policy covering the motorcycle, driven by one Kenneth Dubois; Louisiana Companies, Progressive’s agent; Congregation of St. Joseph’s Roman Catholic Church, Chau-vin, Louisiana and the Roman Catholic Church of the Diocese of Houma-Thibo-daux (hereinafter collectively referred to as St. Joseph), the sponsor of an annual church fair at which McKee allegedly became intoxicated prior to the accident; and United States Fidelity and Guaranty Company (USF & G), in a dual capacity as St. Joseph’s liability insurer and as issuer of an automobile insurance policy with uninsured/underinsured motorist coverage on the Dubois motorcycle.

On the basis of a previously executed release signed by the plaintiffs, Duet and Louisiana Farm Bureau were dismissed from the suit after filing an exception of no right/no cause of action and alternatively, a motion for summary judgment. Louisiana Companies and Progressive were similarly dismissed prior to trial on their motion for summary judgment. At trial, the only remaining defendants were St. Joseph and USF <& G, in . both its capacities. After a bench trial, the trial judge rendered judgment against plaintiffs, and this appeal followed.

Plaintiffs assert two specifications of error: (1) that the trial court erred in determining they had failed to prove any negligence on the part of St. Joseph; and (2) that the trial court erred in concluding that even if plaintiffs had proven actionable negligence, all defendants were solidarily liable with McKee and had been discharged from liability by virtue of the unrestricted release of Duet and Louisiana Farm Bureau by the plaintiffs prior to filing suit.

We amend and as amended, affirm.

St. Joseph’s Catholic Church in Chauvin, Louisiana, has sponsored an annual fair called “Lagniappe on the Bayou” for over a decade. Games, rides, food and beer are offered at the fair. Plaintiffs allege that in 1979, fair personnel sold McKee, a minor, alcoholic beverages in violation of several statutes, LSA-R.S. 14:91, R.S. 26:88(1), and R.S. 26:285. As a result, they allege, McKee became grossly intoxicated, and as he drove home around midnight, recklessly attempted to pass four or five vehicles in a steep curve, on a two-lane highway, ignoring a double yellow line prohibiting passing. McKee collided in the curve with the motorcycle being driven by Kenneth Du-bois and ridden by plaintiffs’ son, in the motorcycle’s lane of travel. Plaintiffs’ son was killed, Dubois was severely injured, and McKee suffered minor scratches. Blood drawn from McKee approximately two hours after the accident revealed that at that -time, McKee’s blood alcohol level was .13%. The investigating officer testified that at the scene of the accident, McKee was wobbly and unstable, and smelled of alcohol. He cited McKee for improper passing, reckless operation of his vehicle, and driving while intoxicated.

EFFECT OF THE UNRESTRICTED RELEASE

Plaintiffs executed a release in favor of Duet and her automobile liability insurer, Louisiana Farm Bureau, thirteen days after the accident. They were not represented by legal counsel at the time. The release failed to contain any language expressly or impliedly reserving plaintiffs’ rights against the defendants, and in fact expressly released all other parties “who are or may be liable”.

It is well established that the release of one solidary obligor or joint tort-feasor without express reservation of rights against other solidary obligors or joint tort-feasors discharges all other soli-dary obligors and joint tort-feasors from liability. LSA-C.C. art. 2203; Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), appeal after remand 371 So.2 d 1179 (La.App. 1st Cir.1979), writ denied 373 So.2d 510 (La.1979).

Plaintiffs amply proved at trial the negligence of McKee and his resulting liability, as primary tort-feasor, for the death of their son. They contend that St. Joseph, as the supplier of alcoholic beverages to the minor driver, is also liable. Assuming the existence of liability, plaintiffs argue that St. Joseph’s liability is not solidary with McKee’s, and thus that St. Joseph and its liability insurer should not be discharged by the unrestricted release. Plaintiffs base their argument on three cases: Boyer v. Johnson, 360 So.2d 1164 (La.1978); Garcia on Behalf of Garcia v. Jennings, 427 So.2d 1329 (La.App. 2d Cir.1983); and Chausse v. Southland Corp., 400 So.2d 1199 (La.App. 1st Cir.1981), writs denied 404 So.2d 278, 404 So.2d 497, 404 So.2d 498 (La.1981).

In these cases, the extent of the defendant’s duty to protect a minor from the consequences of his own negligence, under varying circumstances, was examined. In Boyer and Chausse, the court found that the minor plaintiff’s contributory negligence would not serve to bar his recovery from the defendants, because the defendants’ duty encompassed the risk of the minor’s negligence. Chausse involved the sale of alcohol to a minor. Extrapolating from the principle enunciated in Boyer and Chausse, plaintiffs conclude that innocent third parties, injured as a result of the minor’s negligence, would similarly be barrfed from recovery from the minor. They contend that because the third party would be unable to recover from the minor, there can be no solidary liability between the minor and St. Joseph’s.

This argument is without merit. The intoxicated minor is in fact liable to an innocent party injured as a result of his negligence, and the injured party is in fact able to recover damages from the minor and/or his parents under existing law. LSA-C.C. arts. 2315, 2318. Assuming solely for the sake of argument that plaintiffs did prove by a preponderance of the evidence that St. Joseph violated the aforementioned statutes by selling alcohol to McKee, and allowed him to leave the fair grounds in an intoxicated condition, and further assuming that civil liability would inevitably follow as a result of these actions, St. Joseph’s liability would be soli-dary with that of McKee’s, as St. Joseph would be a joint tort-feasor. Billeaudeau, supra.

Therefore, the trial court’s dismissal of plaintiffs’ suit against St. Joseph was correct. As against USF & G, the judgment of dismissal did not distinguish between this defendant’s dual capacities (as St. Joseph’s liability insurer and as the uninsured/underinsured motorist carrier of the Dubois motorcycle). Accordingly, the trial judge’s dismissal of USF & G was correct only insofar as it applied to USF & G in its capacity as St. Joseph’s liability insurer. For the following reasons, the dismissal of plaintiffs’ suit against USF & G in its capacity as UM insurer was in error.

On November 26, 1984, the Louisiana Supreme Court handed down Carona v. State Farm Ins. Co., 458 So.2d 1275 (1984), which held that “when an automobile accident victim settles with his tortfeasor his claim against his UM insurer is not discharged merely because he does not expressly reserve his right against the latter in accordance with Civil Code article 2203”. Speaking for the Court, Justice Dennis reasoned that although the tortfeasor and the UM insurer are solidary obligors, the rule of art. 2203 has been superseded by LSA-R.S. 22:1406(D)(4), which provides:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made ...”

The Court stated:

“This statutory provision, and Civil Code article 2162, make it clear that when the UM insurer pays part of the damages to which the insured is entitled from a tort-feasor and receives a release from the insured, the insured is nevertheless entitled to exercise his right for the balance of the partially paid claim in preference to the insurer, even though the insurer and the tort-feasor are solidary obligors ... These statutory provisions clearly imply that the insured’s right to recover from the UM insurer is afforded similar protection when he first receives payment for part of is damages from the tortfeasor. Any other interpretation would be unreasonable and would cause injuries of innocent, insured motorists to go unremedied, thus frustrating the legislative aim of the UM statute. Since full recovery is the goal of the legislation and because the tortfeasor and the UM carrier are codebtors in solido, we infer that a victim merely by his release of the tortfeasor does not forfeit any right against his UM carrier.” (citations omitted) (pp. 5-6)

Applying the Court’s holding in Carona to the instant case, we must conclude that the trial court erred in dismissing plaintiffs’ case against USF & G, in its capacity as UM insurer.

Having disposed of the case on other grounds, the trial court did not address certain issues which now, due to our amendment of its judgment, must be resolved. Since the entire record is before us, we will render judgment pursuant to the authority granted appellate courts by LSA-C.C.P. art. 2164.

There is no dispute that plaintiffs’ son, as guest passenger, was an ‘insured’ entitled to the UM coverage afforded by the USF & G policy of his host driver, Dubois. However, in order to recover from USF & G, plaintiffs must establish fault on the part of McKee which gives rise to damages and prove the extent of those damages. Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983). In the instant case,' a detailed examination of the record convinces us that the plaintiff amply carried their burden of proving negligence or fault on the part of McKee which resulted in the death of their son, Robert J. Cadierre, Jr. USF & G raised the defense of contributory negligence on the part of the decedent, but failed to prove its contentions at trial.

DAMAGES

Plaintiffs sought damages for the wrongful death of their son, as well as for the pain and suffering allegedly suffered by him before his death.

For the wrongful death of a child, parents are entitled to recover for their grief, as well as for the deprivation of love, affection and companionship. Alizzi v. Employers Ins. of Wausau, 351 So.2d 258 (La.App. 3rd Cir.1977), writ denied 353 So.2d 1037 (La.1978). In this regard, it is appropriate to consider the awards made in other similar cases, although these awards are by no means binding upon the court.

Robert J. Cadierre, Jr. was 17 at the time of his death, and was the plaintiffs’ first born son. He was raised by his grandmother until he was six years old. He had left school in the ninth grade, was living with his parents, and was working as a mechanic at a service station. According to their uncontradicted testimony, the plaintiffs enjoyed a good and close relationship with their son.

We feel that an award of $75,000 to each parent is just and appropriate.

Plaintiffs’ son remained alive for a short time (an hour or less) after the collision, but plaintiffs failed to prove that the boy was ever conscious and aware of his pain and impending death. Accordingly, we cannot award any amount for this element of damages. Plaintiffs are also entitled to the sum of $2,914.65 for medical and funeral expenses proven at trial. Of course, USF & G will be bound to pay no more than applicable policy limits.

Accordingly, for the foregoing reasons, judgment is hereby rendered affirming that portion of the trial court’s judgment dismissing plaintiffs’ suit against Congregation of St. Joseph’s Roman Catholic Church, Chauvin, Louisiana and the Roman Catholic Church of the Diocese of Houma-Thibodaux; that portion of the judgment below dismissing plaintiffs' suit against USF & G is hereby affirmed but amended to apply to USF & G in its capacity as St. Joseph’s liability insurer; judgment is hereby rendered in favor of plaintiffs and against defendant USF & G, in its capacity as the Dubois UM insurer, in the amount of $152,914.65, plus interest, subject to its applicable policy limits. Costs to be paid in equal portions by plaintiffs-appellants and defendant USF & G.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Apparently, plaintiffs’ petition is incorrect; in its answer the church refers to itself as Congregation of St. Joseph’s Roman Catholic Church, Chauvin, Louisiana. The judgment appealed from used the same title.

      . The insurance policy upon which they were sued had expired prior to the accident. USF & G’s third-party demand against them was also dismissed.

      . .There was some testimony that hard liquor may have been available for purchase at the 1979 fair.

      . LSA-R.S. 14:91 provides, in pertinent part:
      "Unlawful sales to minors is the selling, or otherwise delivering for value by anyone over the age of seventeen of any alcoholic beverage either of high or low alcoholic content ... to any person under the age of eighteen. Lack of knowledge of the minor’s age shall not be a defense.
      Whoever commits the crime of unlawful sales to minors shall be fined not more than three hundred dollars, or imprisoned for more than six months, or both.”
      LSA-R.S. 26:88(1) provides:

        “No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
      (1) Sell or serve alcoholic beverages to any person under the age of eighteen years, unless such person submits a driver’s license, selective service card or other lawful identification which, on its face, establishes the age of the person as eighteen years or older and there is no reason to doubt the authenticity or correctness of the identification.
      LSA-R.S. 26:285 provides, in pertinent part:
      "No person holding a retail dealer’s permit and no servant, agent, or employee of the permittee shall do any of the following acts upon the licensed premises:
      (1) Sell or serve beverages of low alcoholic content to any person under the age of eighteen years, unless such person submits a driver’s license, selective service card or other lawful identification which, on its face, establishes the age of the person as eighteen years or older and there is no reason to doubt the authenticity or correctness of the identification.


author: LOTTINGER, Judge.

text:
    Donald E. ROWE v. NORTHWESTERN NATIONAL INSURANCE COMPANY, et al.
    No. CA 83 1386.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Granted March 8, 1985.

      Eddie L. Anderson, Jr., Ralph Brewer, Baton Rouge, for plaintiff-appellant.
    Eugene R. Groves, Baton Rouge, for defendants-appellees.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

This is an action ex delicto by Donald Rowe, an employee of Ace Electric Company, against Cargill, Inc. and its insurer for injuries sustained while Rowe was performing electrical work pursuant to a contract between Ace Electric Company and Cargill, Inc. The trial judge entered a summary judgment in favor of Cargill, Inc. and its insurer. From this judgment Rowe appeals.

FACTS

Donald Rowe (Rowe) is an employee of Ace Electric Company as an electrician. Cargill, Inc. (Cargill) is a world-wide agricultural company which deals in the merchandising, transportation, and sale of agricultural commodities. Cargill entered into a contract with Ace Electric Company to reconnect the electrical power to a centrifugal pump located at Cargill’s bulk liquid import-export facility in West Baton Rouge Parish. The pump had undergone repairs, and for it to be returned to operable status the electric power source had to be reconnected to the motor which drives the pump. After Rowe made the necessary connections the pump was tested. As the pump began to turn, a coupling was thrown from the shaft. This coupling struck Rowe in the leg, resulting in the injuries which form the basis of this suit.

Rowe filed suit against Cargill and its insurer alleging negligence on the part of Cargill and its employees. The defendants responded to the suit by filing an exception of “no cause or right of action,” and, later, a motion for summary judgment. The basis of both the motion for summary judgment and the peremptory exception was the contention that Rowe was the “statutory employee” of Cargill. Thus, Rowe’s exclusive remedy for his injuries was workmen’s compensation. In support of their contention, defendants introduced into evidence the deposition of Mr. Kenneth Sinclair Dameron, the manager of the Cargill facility which was the site of the injury.

After argument by both sides, the trial judge granted defendants’ motion for summary judgment, but did not rule on defendants’ exception of “no cause or right of action”. From the entering of summary judgment in favor of the defendants, Rowe has appealed, alleging the following assignments of error:

(1) The trial court erred in finding that Cargill was the statutory employer of Rowe as defined by La.R.S. 23:1061.
(2) The trial court erred in granting defendants’ motion for summary judgment.

Cargill and its insurer have answered the appeal and ask for a judgment sustaining their exception of “no cause or right of action” in addition to, or alternative to the summary judgment.

I

In the absence of statutory provisions, an employee of a contractor would not be considered as an employee of the owner or “principal.” However, by statute, such an employee is deemed to be an employee of the principal when the contractor performs work for the principal which constitutes part of the principal’s “trade, business or occupation.” La.R.S. 23:1061; Johnson v. Alexander, 419 So.2d 451 (La.1982).

The determination of whether a principal is a statutory employer is a factual question and must be handled on a case by case basis. Lewis v. Exxon Corporation, 441 So.2d 192 (La.1983) on rehearing; Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1st Cir.1979), writ denied, 371 So.2d 615 (La.1979). However, it is well established as a general rule that routine maintenance and repair work, which by their nature allow the smooth and continued operations of the principal, are part of the trade, business or occupation of the principal. Lewis v. Exxon Corporation, supra; Brewer v. Stauffer Chemical Company, 424 So.2d 1092 (La.App. 1st Cir. 1982), writs denied, 429 So.2d 143, 429 So.2d 146 (La.1983).

In Lewis v. Exxon Corporation, the Louisiana Supreme Court stated that to be considered a statutory employee of the principal, the work done by the contractor’s employee must be routine or customary, or necessary for the principal’s day-to-day operations. In addition, we are to look to the regularity and predictability of the activity and whether the employer is normally equipped to handle such projects or repairs.

In the instant case, the deposition of Mr. Dameron, the Cargill plant manager, was introduced into evidence. Mr. Dameron testified that the pump was essential to the day-to-day operations of the facility, and that the facility could not operate without it. Furthermore, Mr. Dameron testified that the repairs to the pump were carefully planned and scheduled far in advance of the actual repairs. Also, the project was the responsibility of Cargill employees, who did all of the disassembly and reassembly except for the electrical connections, which were done by Rowe.

Although Cargill employed no electricians at this particular facility, electricians were frequently borrowed from a neighboring division of Cargill, which is located on the same property but controlled by separate management personnel. These electricians were employed by Cargill and were capable of making the connections. However, for scheduling purposes and various other economic reasons, Dameron decided to hire an independent electrician. Also, on a nationwide basis, this type of job is typically done by Cargill employees. The fact that Dameron decided to hire a contractor to perform these electrical connections rather than utilizing Cargill employees from the neighboring facility does not preclude statutory employer status. Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978).

In Klohn v. Louisiana Power & Light Company, 394 So.2d 636 (La.App. 1st Cir.1980), writ denied 399 So.2d 612 (La.1981), the repair of a diesel engine by a contractor’s employee was found to be part of the trade, business or occupation of a company which generated and sold electricity. We find Klohn to be closely analogous to the present case.

Based on the above, we conclude that the work being performed by Rowe at the time of his injuries was an integral and necessary part of the regular trade, business or occupation of Cargill. As such, Rowe was the statutory employee of Car-gill and the finding of such by the trial court was not erroneous.

II

In his second assignment of error, Rowe contends that the trial court erred by granting defendants’ motion for summary judgment. The basis of this contention is that there existed a genuine issue of material fact, that being whether the work done by Rowe was part of the trade, business or occupation of Cargill.

Summary judgment is available when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidávits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966. All inferences drawn from the evidence in support of the motion for summary judgment are viewed in favor of the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981). Any doubts as to the existence of material fact issues and the granting of the summary judgment are to be resolved against the mover. Sanders v. City of Blanchard, 438 So.2d 714 (La.App.2d Cir.1983). A summary judgment is not appropriate where the trier of fact must weigh conflicting evidence to reach a conclusion upon which reasonable minds could differ. Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La.1982).

We conclude there is no genuine issue of material fact in light of the deposition of Mr. Dameron, and defendants are entitled to judgment as a matter of law.

HI

Inasmuch as we have concluded that the trial court was correct in its handling of the motion for summary judgment, we preter-mit any discussion of defendants’ answer to the appeal.

Therefore, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.