author: SHORTESS, Judge. LANIER, Judge, CRAIN, Judge,

text:
    In re Appeal of Audrey C. KENNEDY (DHHR, Office of Charity Hospital of Louisiana at New Orleans).
    Nos. 83 CA 0120, 83 CA 0121.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Archie C. Tatford, Jr., New Orleans, for appellant.
    Philip H. Kennedy, Dept, of Health & Human Resources, New Orleans, for appel-lee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is an appeal from a decision of the State Civil Service Commission which upheld the firing of appellant, Audrey C. Kennedy, from her position as a cardiology technician.

Appellant had obtained permanent status in the classified civil service position of Cardiology Technician III. She worked for the Department of Health and Human Resources at Charity Hospital in New Orleans for a period of twenty-three years.

Based upon an incident which occurred on March 28, 1980, appellant was advised by disciplinary action form dated March 28, 1980, that she was being suspended indefinitely pending termination. By letter dated April 17, 1980, appellant was notified that her dismissal was effective April 25, 1980. An appeal was taken from this action and on August 21, 1980, a motion for summary disposition was filed with the Commission. Finding the termination letter was not received by appellant until after the effective date of the termination due to an incorrect address, the Commission ordered appellant reinstated as of March 28, 1980.

On October 6, 1980, appellant was again notified that she would be suspended effective October 17, 1980, pending termination. This action was based upon the same incident. Appellant appealed this suspension. On November 26, 1980, appellant was notified that her termination would be effective December 4, 1980. On December 24, 1980, appellant appealed her termination. Pursuant to Civil Service Rule 13.23, the appeal of the suspension and the appeal of the termination were consolidated for hearing.

On November 20,1981, counsel for appellant filed a request for summary disposition. A public hearing was held before the Commission on December 1, 1981, in New Orleans. By letter dated December 8, 1981, the parties were advised that the request for summary disposition was denied except as to the issue of whether the action was taken by the proper appointing authority. This was referred to the merits.

The Commission heard the merits of appellant’s appeal on April 6, 1982. On October 15, 1982, the Commission rendered an opinion upholding the termination of appellant by the appointing authority. The Commission made the following findings of fact:

(1) The disciplinary action which is the subject of these appeals was taken by the proper appointing authority because appointing authority had been delegated to B.J. McClendon by Charles Lazare, who was the statutorily designated appointing authority for Charity Hospital of Louisiana at New Orleans.
(2) Dr. Ann Stevenson ordered an EKG early on March 27, 1980 for a patient who was scheduled for surgery on the morning of March 28, 1980. Without the EKG, the surgery would have to be can-celled. At approximately 4:00 p.m. on March 27, 1980, Dr. Stevenson learned that the EKG had not been made. Dr. Stevenson contacted appellant and requested the EKG be performed immediately and read. This was done by the appellant.
(3) On March 28, 1980, the appellant discovered that the patient for whom she had done the EKG on the 27th, and who was scheduled for surgery that day had not gone to surgery. The surgery had been cancelled for other reasons. Appellant encountered Dr. Stevenson in C 400-A while the latter was making rounds with a new group of medical students. A confrontation ensued, which was embarrassing to Dr. Stevenson and the new group of medical students. Essentially, appellant made a fuss about the fact that she had been prevailed upon to immediately perform an EKG and have it read so that surgery would not be delayed, and in fact, the surgery was delayed anyway.
(4) The actions of the appellant were completely out of order and constituted serious unprofessional conduct if not insubordination.

In her first assignment of error, appellant argues that the Commission erred in not granting her request for summary disposition. Appellant asserts specifically that neither her suspension nor her termination were taken by the proper appointing authority. The record reflects that appellant’s suspension was signed by Charles L. Lazare and the termination was signed by B.J. McClendon, both of whom acted in accordance with Civil Service Rule 12.3(a) which allows disciplinary action to be taken by “the appointing authority or (through) his authorized agent.” (Emphasis added.)

The record reflects that at the time of the suspension, Charles L. Lazare was the authorized agent of the proper appointing authority, namely George A. Fischer, Secretary of the Louisiana Department of Health and Human Resources. Lazare delegated authority to terminate to B.J. McClendon. Lazare’s authorization from Fischer included this sort of delegation of authority. Therefore, appellant’s first assignment of error is without merit.

Four of the appellant’s assignments of error question the Commission’s finding that the evidence supports the appellant’s dismissal for “cause.”

Initially we note that notwithstanding repeated attempts by counsel for appellee to lay the matter over for the testimony of Dr. George Martinez, appellant’s supervisor, the Commission refused. It felt that since he was not an eye witness to the verbal confrontation, he could have nothing substantive to add. The letter of termination, however, expressly stated:

“Previously, you were counselled because of minor infractions. On September 9, 1979, you were suspended without pay for three days because of improper performance of duties. On December 4, 1979, you received a letter acknowledging improvement in your performance but your total lack of improvement on basic knowledge of electrocardiography was not up to expectations. Up until the day of your suspension, indications were that you had failed to improve your knowledge in the field and that your relationship with your subordinates was unchanged from that of December, 1979.”

La. Const, art. X, § 8(A) provides that no person who has gained permanent status in the classified state civil service shall be subject to disciplinary action except for cause expressed in writing. Further, it provides than on appeal the burden of proof is on the authority to fully support that the dismissal was for “cause.” Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir. 1981). Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Dent v. Department of Correction, Louisiana Correctional Institute for Women, 413 So.2d 920 (La.App. 1st Cir.1982); Newman v. Department of Fire, 413 So.2d 225 (La.App. 4th Cir.1982).

The Commission’s findings of fact only show that appellant was terminated because of a verbal confrontation between her and Dr. Ann Stevenson. It found her actions were completely out of order and constituted serious unprofessional conduct if not insubordination.

Dismissal from permanent employment is obviously the most extreme form of disciplinary action that can be taken against a classified state employee. Cause that may justify some other lesser form of disciplinary action may not justify a dismissal. Repeated improper conduct after lesser disciplinary action has been taken, the totality of individual lesser offenses, or even a single particularly aggravated incident have all been found to constitute legal cause for dismissal. Ryder, 400 So.2d at 1126.

The Commission considered only the March 28, 1980, incident. The record reflects that appellant was a permanent employee in classified service with 23 years’ experience. Her offense was not proven to relate to her job skills or ability, but she did embarrass a superior by unprofessional conduct. The disciplinary action taken did not justify dismissal without additional evidence of prior misconduct. DHHR should have been permitted to produce evidence that would have substantiated all of the charges made in its letter of termination. Without such evidence, we find that dismissal under these circumstances was too harsh.

Accordingly, we remand this matter to the Commission with instructions to afford appellee an opportunity to take the testimony of Dr. George Martinez and to give appellant an opportunity to rebut any testimony given by Dr. Martinez.

REMANDED WITH INSTRUCTIONS.

CRAIN, J., dissents.

LANIER, J., concurs and assigns reasons.

LANIER, Judge,

concurring.

The Louisiana Constitution gives this court the authority to review final decisions of the Commission “on any question of law or fact...”. La. Const, of 1974, art. X, § 12(A). The appropriateness of a penalty imposed on a classified employee (excessive or inadequate) is a question of law or fact and is reviewable by this court. Cf. Wollerson v. Department of Agriculture, 436 So.2d 1241 (La.App. 1st Cir.1983). (If it is not law or fact, then what can it be?) The constitution and law do not provide what standard should be used in determining the appropriateness of a penalty approved by the Commission. By analogy, the same standard used in other systems should be used in this system. This court should not modify a penalty approved by the Commission unless it is arbitrary, capricious or manifestly erroneous. La.R.S. 49:964(G) and 965; Newman v. Department of Fire, 425 So.2d 753 (La.1983); City of Kenner v. Pritchett, 432 So.2d 971 (La.App. 5th Cir.1983). I agree with the main opinion that the record as presently constituted will not support the penalty and that this cause should be remanded for additional evidence.

CRAIN, Judge,

dissenting.

I respectfully dissent from the majorities’ holding that this case should be remanded because the penalty imposed is “too harsh” based upon the evidence contained in the record. If we determine that there is cause for disciplinary action, I seriously question our legal authority to substitute our judgment for that of the appointing authority and the commission as to the degree of punishment to be imposed. If we are able to review the disciplinary action other than for cause then our standard of review should not be whether we believe the disciplinary action was “too harsh”. If a determination is made by the commission that conduct of an employee is detrimental to public service, and that determination is supported by sufficient and competent evidence, we should go no further. Stiles v. Dept. of Public Safety, Drivers License Division, 361 So.2d 267 (La.App. 1st Cir.1978). I believe the majority opinion does so here.

Accordingly, I respectfully dissent.

      . Appellant cited five additional grounds for summary disposition and refers us to his brief filed with the Commission in support of these grounds. We find the Commission correct in that:
      (1) There was no violation of Rule 12.2(b) since the record reflects appellant was suspended pending termination and the termination occurred within 90 days of the suspension.
      (2) The factual allegations to support termination for cause were specific and unambiguous. It is not relevant whether the specified facts are termed "insubordination" or would be more appropriately labeled “improper patient care,” “improper performance of duty” or even "exhibiting unruly behavior.”
      (3) The facts alleged, if proven, are sufficient to form the basis of the action taken as dealt with in the opinion on the merits.
      (4) The matter is not res judicata since the original reinstatement was due to a technical deficiency of an incorrect address as pointed out in the fact summary of this opinion.
      (5) Violation of Civil Service Rule 12.2(a), requiring notification of appeal rights with a suspension, merely prevents the running of the 30-day delay for appeal for non-compliance. Spears v. Department of Corrections, 402 So.2d 203 (La.App. 1st Cir.1981). Since appellant’s appeal was filed timely, any lack of notification would not be prejudicial. Civil Service Rule 12.3(a)(3) is mainly directory. Non-compliance does not affect the validity of the proceeding. Sanders v. Dept. of Health and Human Resources, 388 So.2d 768 (La.1980).

      . Dr. Martinez was out of the State on military assignment, so could not testify on April 6, 1982.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    RED ARROW SALES, INC. v. DIXIE MOTORS, INC.
    No. 83-CA-0123.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Robert A. Anderson, Jr., Covington, for plaintiff-appellant.
    Nita R. Gorrell, Hammond, for defendant-appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The trial court denied plaintiff’s main demand and granted defendant’s reconven-tional demand for the rescission of a sale on the basis of redhibition and awarded damages and attorney fees. We affirm in part and reverse in part.

On November 18,1980, Red Arrow Sales, Inc., hereinafter Red Arrow, sold to Dixie Motors, Inc., hereinafter Dixie, a used Worthington 5-brush car wash for $7,540.89. Under the terms of the contract the price included delivery and installation fees but did not include the cost of running utilities (air, water, and electrical lines) or the cost of pouring the slab or erecting the building to house the car wash.

Dan Durham, owner and general manager of Dixie, hired general contractor Carl Wainwright to prepare the slab according to the site plan prepared and provided by Cliff Walker, owner and general manager of Red Arrow. The site plan was a detailed sketch specifying the dimensions of the building to be erected and the thickness, texture and slope, or grade, of the slab to be prepared. Walker hired Roy Simoneaux to deliver and install the car wash on December 11. Because of delays in construction of the slab and the building, Simoneaux was unable to install the car wash until February 18, 1981.

On that date, the construction of the building and the slab were completed but the utilities were still unconnected. Simo-neaux anchored the tracks to the slab, but when he placed the car wash on top, he noticed that the slope of the slab was too great for the machine to roll evenly on the tracks. He testified that the car wash, weighing over 4,000 pounds, must roll on level tracks bolted flush to the slab. In an attempt to remedy the problem, he welded a flat iron bar to the vertical side of the tracks.

On the 21st of February, he returned with Charlie Schellbach, the manufacturer of the car wash, to complete the installation and inspect the machine for operation. Schellbach discovered several problems with the machine in addition to the problems with track. One of the brushes had a faulty electric motor which caused the brush to spin at irregular intervals. One of the pneumatic air brushes would stick preventing a side arm from disengaging. Four rubber bumpers needed replacing. Several of the air and water pipes were leaking. He also suggested that Simo-neaux replace the wheels with new larger ones to conform with the new higher tracks and to compensate for the high slope of the slab.

Consequently, Simoneaux returned again on the 26th of February to replace the faulty electric motor. He discovered a bad transformer, caused by low voltage, and replaced that on March 14. He had had to replace a second bad motor on March 7. He installed the new wheels on March 23. Cliff Walker accompanied him that day to clean the brushes and remove some undercoating that Durham had complained of. Durham also complained that the car wash would not wash compact cars, so Walker ordered a larger top brush, called a monster brush, on May 9. Simoneaux replaced that brush on May 15.

Because of these repeated repairs and modifications, Durham became completely dissatisfied with the car wash. He testified that although the car wash was used, Cliff Walker represented that the car wash was “like new,” being only two years old. He said that when he first saw the car wash he was shocked by its outward appearance, being dirty, rusty, worn with use, with undercoating in the brushes. He said he expected the machine to be able to wash all the cars that his dealership retailed, but that it never successfully washed one car. According to Tony Marullo, Durham’s former manager, the one time Dixie ever used the car wash it streaked the car paint and left undercoating on the tires. Accordingly, when Simoneaux returned on June 9 to widen the guide rails, Durham refused to let him do any more work on the car wash.

On June 16, Durham tendered the car wash to Cliff Walker and offered him $1,000.00 to take it back. Walker refused and on behalf of Red Arrow filed suit for recovery of the price, damages and attorney fees. Dixie answered and reconvened for the rescission of the sale, its own damages and attorney fees.

The trial court found that the car wash contained several redhibitory vices: It was rusty at seams and in corners and physically unsightly. One of the side arms would not disengage. Several parts, including two defective electric motors and a faulty transformer, had to be replaced. The brushes were worn and coated with undercoating. The track had to be modified; and the wheels, bumpers, shafts, and bearings had to be replaced. The court further found that “the purpose of the car wash was to clean every vehicle owned by Dixie Motors from large vans to small compacts,” and that the only time the employees of Dixie operated the car wash it scratched a car.

The court also found that because it was necessary to overhaul, remake and assemble the equipment, Red Arrow fabricated the car wash, and was therefore a manufacturer within the meaning of LSA-C.C. art. 2545.

Based upon these findings, the trial court denied Red Arrow’s main demands and awarded Dixie $2,330.00 damages in storage costs and $1,500.00 attorney fees. From this judgment, Red Arrow appeals, arguing essentially that the evidence is insufficient to support the trial court’s findings of either redhibitory defects justifying a rescission of the sale or a fabrication rendering Red Arrow liable as a manufacturer for attorney fees.

Redhibition is the avoidance of a sale on account of some vice or defect in a thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. LSA-C.C. art. 2520. However, the plaintiff need not prove the precise or underlying cause or defect, so long as he shows that the thing contained a defect and that the defect existed at the time of the sale. Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975).

Moreover, multiple defects can collectively form the basis of a redhibitory action even though many of the defects are minor or have been repaired. Even latent defects appearing well after the sale can be a basis for redhibition if they are not the normal result of ordinary use. Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1st Cir.1980).

Although the warranty against red-hibitory defects in sales of used equipment is not as extensive as in sales of new equipment, it does require that the equipment operate reasonably well for a reasonable period of time. Bamber Contractors, Inc. v. Henderson Bros., Inc., 392 So.2d 92 (La.App. 1st Cir.1980).

Finally, the existence of a redhibi-tory defect is a question of fact which cannot be disturbed unless the record as a whole establishes that the finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir.1981).

The trial court was not clearly wrong in finding that the car wash contained redhibitory defects. From the first day of installation, the car wash demonstrated a history of mechanical and electrical problems. Although Cliff Walker and Charlie Schellbach both testified at trial that the car wash operated “reasonably well” on several occasions, Dan Durham and Tony Marullo testified that the car wash never successfully washed one car. According to Marullo, “[b]ecause the brush turned and some water squirts out, do you call that working? I define working, washing a car.”

On the basis of a reasonable evaluation of credibility, the trial court found for the defendant. We can only do likewise. Even a used car wash that does not successfully wash a single car because of an aggregate of operational failures requiring repeated repairs is clearly defective within the meaning of art. 2320.

However, the trial court was clearly wrong in finding that Red Arrow had fabricated the car wash.

If a seller substantially rebuilds or modifies the thing sold prior to the time of sale or in accordance with the terms of the sales agreement, he may be liable as a manufacturer for his “fabrication” of the product. See for example, Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974) (A manufacturing firm was found to be a “manufacturer” for customizing a used truck, in accordance with the terms of the sales agreement, by adding to it a “tag axle” assembly, which it had fabricated out of spare parts lying around its junk yard. The Supreme Court said that the addition of the tag axle assembly was a substantial modification of the truck.); Capitol City Leasing Corp. v. Hill, 394 So.2d 1264 (La.App. 1st Cir.1981) (This court said that the seller of certain log skidders was a “manufacturer” because he “rebuilt the machines with all new parts prior to the time of sale and lease.” Id. at 1268.) Since the manufacturer is presumed to know the vices and defects of his product, he is liable for damages and attorney fees under LSA-C.C. art. 2545.

In the present case, there is no evidence in the record indicating that Red Arrow substantially modified or rebuilt the car wash either prior to the sale or in accordance with the terms of the contract. Red Arrow is quite clearly a retailer who undertook in good faith after the sale to remedy the defects in what turned out to be a “lemon” of a car wash.

As a retailer, Red Arrow’s liability in redhibition is found in LSA-C.C. art. 2531, which provides in pertinent part:

The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices ... or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

The trial court’s award of $2,330.00 for the cost of storage is a reasonable expense incurred for the preservation of the thing sold. However, Red Arrow is not liable under art. 2531 for attorney fees.

For the foregoing reasons, the award of $1,500.00 attorney fees is reversed. In all other respects, the judgment is affirmed. Cost of these proceedings are to be divided equally between the parties.

REVERSED IN PART AND AFFIRMED IN PART AND RENDERED.

       Red Arrow argues that all of the problems with the car wash resulted from the improper slope of the slab, not from any defects in the machine and that the trial court erred in finding Red Arrow had assumed the additional obligation of constructing the slab. Since we find redhibi-tory defects in the car wash itself, we need not decide whether the trial court’s ruling was correct on this question.


author: WATKINS, Judge.

text:
    Lois Thibodeaux CONRAD v. Tommy L. CONRAD.
    No. 83 CA 0124.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Sidney A. Marchand, III, Talbot, Sotile, Carmouche, Marchand & Marcello, Donald-sonville, for plaintiff-appellee.
    Richard J. Brazan, Jr., Baton Rouge, for defendant-appellant.

      Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This matter comes up on a matter ancillary to, but not forming directly a part of, a judgment of divorce between Tommy L. Conrad and Lois Thibodeaux Conrad, which the wife obtained upon confirmation of default.

Before divorce was granted, and while an action for separation from bed and board was pending, Tommy L. Conrad filed a pleading styled “Answer” which in effect contained a reconventional demand attacking a community property settlement entered into after a prior judgment of separation, the date of the alleged property settlement having been May 23, 1980. Subsequently, the divorce decree mentioned above was obtained after filing of petition for divorce and obtaining confirmation of default. Thereafter, Tommy L. Conrad filed a pleading styled “Supplemental Answer” which is really a reconventional demand seeking to have two alleged community property settlements declared null and void. To this supplemental answer, Lois Thibodeaux Conrad filed an exception of no cause of action, which was sustained by the trial court. We affirm.

We might note at the outset, the entire record is filled with procedural irregularities. The three most notable ones that concern us are that (1) no indication is given by Mr. Conrad that either the “Answer” or “Supplemental Answer” contains a reconventional demand, (2) an exception to an answer that does not clearly embody a reconventional demand is unheard of, and (3) the answer was filed after final judgment on the merits. However, under the law of this state enunciated in LSA-C.C.P. art. 865, pleadings are to be liberally construed. We will, therefore, construe Mr. Conrad’s “Answer” and “Supplemental Answer” as being in part reconventional demands and address the issue of whether or not a cause of action is asserted by Tommy L. Conrad.

As to the first community property settlement, Mr. Conrad alleges it is lesionary.

As to the second community property settlement, the only claims of Mr. Conrad that have a shadow of legal merit are (1) that it too is lesionary, (2) that it was arrived at through error of law on the part of Mr. Conrad, and (3) that the wife in some way induced him to execute it through fraud.

We might note that the trial court incorrectly refers to the contents of the two community property settlements in its reasons for judgment. Neither of these two instruments constituted a part of the quasi-reconventional demand. As only the petition may be considered on an exception of no cause of action and no evidence may be introduced on trial of that exception, the trial court was in error in having adverted to the contents of the two community property settlements. See LSA-C.C.P. art. 931; Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). However, even without our considering the contents of these two instruments, it is clear that the exception of no cause of action was properly sustained.

As to lesion, LSA-C.C. 1403 reads as follows:

“But, after the partition, or the act operating the same effect, the action of rescission can no longer be admitted against a compromise made to put an end to disputes arising in consequence of the first act, although there should be no suit commenced on the subject.”

Thus, it is clear that the settlement entered into last cured whatever defects may have attended the community property settlement entered into first, and that, under the clear language of the Codal article, the second property settlement is not subject to attack on the ground of lesion.

As to the alleged error of law on the part of Mr. Conrad, we see that a compromise cannot be attacked on account of an error of law. Succession of Teddlie, 385 So.2d 902 (La.App. 2d Cir.1980), writ denied 393 So.2d 742 (1980).

The only portion of either the Answer or Supplemental Answer suggesting fraud in any way is the following two sentences quoted from paragraph “13” of the Supplemental Answer:

“He was under the assumption, because of what his wife told him, he owned the property along with her. He was informed by her the property had been transferred to his name.”

It is a well-known principle of law that fraud must be pleaded with particularity. LSA-C.C.P. art. 856 directly applies:

“In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.”

The two sentences quoted from the Supplemental Answer could be construed as having any of several different meanings, several of which constructions would not involve an allegation of fraud. Thus, fraud is not pleaded sufficiently precisely to meet the requirement of LSA-C.C.P. art. 856.

No other of the rambling and imprecisely stated allegations made by Mr. Conrad has any legal merit. As the allegations discussed are likewise insufficient to state a cause of action, the trial court was correct in sustaining the exception of no cause of action.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Thomas L. FAUST and Donna M. Faust v. Loel G. WHITE, White Investments, Inc., Whitmar Acres, Inc., A Division of White Investments, Inc., Mid-Acres, Inc., Richard W. Smith and John L. Ashcraft.
    No. 83 CA 0125.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      T.J. Seale, Hammond, for plaintiff-appel-lee.
    Iddo Pittman, Jr., Hammond, for defendant-appellant.
    Samuel A. Bacot, Baton Rouge, for Richard W. Smith, et al.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendants appeal the trial court’s declaratory judgment that certain amendments to building restrictions were null and void.

The only issue is whether an amendment can be made prior to the end of the term contained in the restrictions, with less than the unanimous consent of the property owners.

We affirm.

Plaintiffs purchased a lot in Section C of Whitmar Acres Subdivision in 1979. Building restrictions by White Investments, Inc. which covered Section C were recorded in August of 1977 and provided in part as follows:

B.l Term
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years, from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument in writing signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part.

In July of 1981 and March of 1982, purported amendments to the restrictions were filed which were signed by a majority of the owners of Section C, but not by the plaintiffs. One of the amendments changed some of the single family lots to multi-family lots.

Plaintiffs filed suit against Loel G. White, White Investments, Inc., Whitmar Acres, Inc., Mid-Acres, Inc., Richard Smith and John Ashcraft seeking to enjoin the construction within Section C, of multi-fam-ily dwellings or commercial buildings and requesting a declaratory judgment that amendments to the subdivision restrictions made in 1981 and 1982 were null and void.

The trial judge, with written reasons, declared that the amendments were null and void and that the original restrictions were to be given full effect until they were amended by unanimous consent of all of the landowners in Section “C” or they terminated under the provisions of article B.l, contained in the restrictions.

Defendants argue that amendments to the restrictions were valid. They interpret article B.l as providing that the majority of the owners of the lots could at any time agree and execute an amendment to the restrictions.

In suits in which the scope of building restrictions is at issue, the court must seek the intention of the party encumbering the property. Consideration must be given to the entire context of the instrument rather than to a single phrase or clause. Those acquiring the property in the restricted area are entitled to the presumption that the restrictions will be fairly and faithfully complied with. Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947); Mitchell v. Killins, 408 So.2d 969 (La.App. 2nd Cir.1982).

We find the terminology of article B.l to be clear and unambiguous. No change by a majority of the landowners of Section C can be made until an initial twenty-five year period has passed.

While the law favors contractual interpretation according to the true intent of the parties, that intent is to be determined by the words of the contract, when they are clear, explicit and lead to no absurd consequences. La.C.C. art. 1945. Article B.l follows the idea of La.C.C. art. 780 in setting a time period during which no change can be made. We find no absurd consequences. Robinson v. Morris, 272 So.2d 444 (La.App. 2nd Cir.1973).

The argument that previous amendments have been made to the restrictions by only a majority is relevant only to determine whether abandonment of article B.l has occurred under La.C.C. art. 782. Generally, insubstantial, technical or infrequent violations will be given little effect and the property owner against whom abandonment is asserted must have known of the alleged violations or have had a duty to know. Also, there is no abandonment of subdivision restrictions unless violations have been such that there has been a subversion of the original scheme of the subdi-viders, resulting in a substantial change in the intended nature of the subdivision. Schwab v. Kelton, 405 So.2d 1239 (La.App. 1st Cir.), writ denied, 407 So.2d 749 (La.1981); East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir.), writ refused, 338 So.2d 699 (La.1976). We find no abandonment or waiver of article B.l.

For these reasons, the judgment of the trial court is affirmed with costs assessed to the defendant.

AFFIRMED.

      . The owners of Section C were Whitmar Acres, Inc., White Investments, Inc., and three individual lot owners, including the plaintiffs.

      . Loel White was sued individually and as an officer of Whitmar Acres, Inc., White Investment, Inc., and Mid-Acres, Inc. Whitmar Acres, Inc. was the original corporation set up for the development of the subdivision. Mid-Acres was set up for the development of Section B of the subdivision and was later absorbed by Whitmar Acres, Inc. White Investments, Inc. was set up for the development of Section C. Defendants, Richard Smith and John Ashcraft, purchased ten lots from White Investments, Inc. in March, 1982, which were converted by the March, 1982 amendment from single family residences.

      .La.C.C. art. 1945:
      Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:

        First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;

        Second — That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;

        Third —That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;

        Fourth — That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.

      . La.C.C. art. 780:
      Building restrictions terminate as provided in the act that establishes them. In the absence of such provision, owners representing more than one-half of the land area, excluding streets and their rights-of-way, affected by the restrictions may amend or terminate by agreement, for the whole or a part of the restricted area, building restrictions that have been in effect for at least fifteen years.

      . La.C.C. art. 782:
      Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only.


author: CARTER, Judge:

text:
    Mr. & Mrs. Carl STANLEY v. John GUY, d/b/a John’s Truck Rental, et al.
    No. 83 CA 0127.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Guy A. Módica, Baton Rouge, for plaintiff-appellee Mr. and Mrs. Carl Stanley.
    Kenneth L. Riche, Baton Rouge, for defendant-appellant John Guy d/b/a John’s Truck Rental, et al.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for damages suffered as the result of a breach of contract.

Plaintiffs, Mr. and Mrs. Carl Stanley, filed suit against John Guy, d/b/a John’s Truck Rental and General Contractors Company, alleging that Guy’s failure to complete work on a concrete deck surrounding their pool resulted in the collapse of the pool. Defendant Guy reconvened for the balance due him on the contract price.

The trial court rendered judgment in favor of the plaintiffs in the amount of $5,250.38 on the main demand. Defendant Guy’s reconventional demand was dismissed. Thereafter, defendant perfected this appeal.

The Stanleys purchased a pool kit during the summer of 1980. By July 4, 1980, they had completed the installation of the pool. The main components of the pool kit were fiberglass panels (thirty-nine inches high by six feet long) and a vinyl liner. The panels forming the wall at the shallow end of the pool rest on the floor of the pool, whereas the panels located at the deep end of the pool rest on a dirt ledge. The panels, which are bolted together for installation, have an “inverted A-frame” brace perpendicular to the top of panel. A concrete deck is poured around the pool on top of the braces. The anchoring of the braces in the concrete prevents the pool walls from caving inward. A mixture of sand and cement is smoothed over the bottom of the pool and the exposed dirt sides, and the vinyl lining is laid in the interior. The structure of the pool is maintained because there is equal pressure on both sides, i.e., the deck and to some extent the water inside the pool holds the walls in place against the pressure of the surrounding dirt.

The Stanleys used the pool for several weeks but were dissatisfied with the rough texture of the concrete deck surrounding the pool. Mrs. Stanley then contacted Mr. Guy and arranged for him to reconstruct the entire concrete deck.

The parties signed a contract dated September 28, 1980. According to the contract, Guy was to break up and remove the existing concrete deck around the pool and then repour the deck (and a patio and walkway) using an exposed aggregate finish. Although the contract called for the work to be completed “as soon as possible weather permitting,” no specific completion date was set out in the contract. Guy told the Stanleys that the work should take approximately two weeks to complete.

The full contract price was $1,150.00 and the payments were to be made as follows: $500.00 at the time the contract was signed; $200.00 at the time the existing deck was broken up; and, $450.00 at the time the work was completed.

Guy began work on the project September 29, 1980 and received the initial payment of $500.00 on September 30, 1980. On October 3, 1980, he received the second payment of $200.00, when, according to Guy, he completed breaking up the existing concrete deck. Mrs. Stanley testified that the existing concrete deck was not completely broken up until October 14, 1980. Both parties agreed that the rubble was not cleared away and the area was not formed up for repouring until the end of October.

According to the record, the water level in the pool was lowered slightly sometime during October. The Stanleys testified that this was done at Mr. Guy’s direction. Mr. Guy denies having given any instructions concerning the water level in the pool.

Mr. Guy ordered concrete for the new deck to be delivered to the Stanley home on November 3, 1980. However, by this time, Mrs. Stanley noticed that one of the pool panels had slipped off the ledge resulting in an inward bulge in the pool. Mrs. Stanley then contacted Mr. Guy and had him postpone the November 3rd pouring date for the concrete. The Stanleys then spent four to five days making repairs on the pool and admitted to lowering the water level during this repair work.

The parties stipulated at trial that Delta Concrete Company was to pour concrete at the Stanley home on November 13th. It was also stipulated that the concrete delivery was canceled, Guy testified that he canceled the concrete delivery at the request of the Stanleys, while the Stanleys denied any knowledge of the November 13th pouring date. The pool collapsed on November 23, 1980, without ever having had a new deck poured.

The Stanleys then filed suit for the damage sustained. The trial judge found that Guy had not completed the work within a reasonable period of time and that Guy’s dereliction in completing the project was the principal reason the pool collapsed. The Stanleys were awarded $5,250.38, the cost of installing a new pool.

Defendant appeals assigning the following errors:

(1) The trial judge erred in holding John Guy liable for the collapse of the Stanleys’ pool;
(2) The Stanleys failed to mitigate their damages and are thus not entitled to recover for their loss; and,
(3) The trial judge erred in holding John Guy liable for damages which were not within the contemplation of the parties at the time of the making of the contract.

ASSIGNMENT OF ERROR NO. 1

Defendant Guy argues that the trial judge erred in holding him liable for the collapse of the pool.

The trial judge found that after Guy had received a major portion of the contract price due him, his enthusiasm for the project waned. As a result of Guy’s failure to complete the project and pour the concrete deck within a reasonable period of time, the pool collapsed.

Guy began working on the project on September 29, 1980. It was not until the end of October that he had completed breaking up and clearing away the existing deck. Although the Stanleys were responsible for the cancellation of the concrete delivery scheduled for November 3, 1980, their actions only resulted in a four to five day delay. Guy could have had the concrete poured at any time after November 7, 1980, which he did not do.

Cory Crane and Gordon Cutler, experts in pool construction, testified that the concrete deck surrounding the pool serves as an anchoring device for the pool and is an essential component in maintaining the pool’s integrity. Maintaining a high water level or bracing within the pool are both useful but temporary measures. In order to insure that the pool does not collapse, the concrete deck has to be poured as quickly as possible.

The trial judge stated, in written reasons for judgment, that the pool collapsed as a result of Guy’s failure to timely complete the project. The finding of the trial judge was based on the evidence concerning the length of time. Guy took to complete the job and on the testimony of experts concerning the possible cause of the collapse of the pool. From a review of the record before us, the findings of the trial judge are supported by credible evidence and are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

ASSIGNMENT OF ERROR NO. 2

Defendant argues that the Stanleys failed to mitigate their damages and, therefore, are not entitled to recover for their loss.

An injured party is required to take reasonable steps and exercise ordinary prudence to minimize his damages. The injured party should exercise a degree of care such as would be taken by an ordinarily prudent individual under the same or similar circumstances. Reasonable care depends upon the circumstances attending each particular case, including time, knowledge, opportunity, exposure to further loss and the expense required to avoid reasonably foreseeable loss. Lawyers Title Ins. v. Carey Hodges & Assoc., 358 So.2d 964 (La.App. 1st Cir.1978).

The Stanleys testified that during the month of October they constantly urged Guy to finish work on the new deck. When two of the pool panels slipped off the ledge at the beginning of November, the Stanleys did all of the repair work themselves. Following this, they again made constant attempts to contact Guy and have him pour the new concrete deck and thereby finish the project.

The actions taken by the Stanleys were more than reasonable under the circumstances. We find no merit in defendant’s contention that the Stanleys’ recovery is barred due to failure to mitigate damages.

ASSIGNMENT OF ERROR NO. 3

Lastly, defendant argues that the trial judge erred in holding Guy liable for damages which were not within the contemplation of the parties at the time the contract was made.

According to LSA-C.C. art. 1934, when one is not guilty of fraud or bad faith, he is liable only for contemplated damages. Contemplated damages have been defined as those which may “fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of its breach.” Herlitz Const. Co., Inc. v. Clegg Concrete, 415 So.2d 387 (La.App. 1st Cir.1982).

Both Mr. and Mrs. Stanley testified that prior to signing the contract they questioned Guy concerning his experience working with pools. They also discussed the construction of their particular pool with Mr. Guy and showed him the booklet they used when installing the pool. In addition, they testified that he was made aware of the fact that the deck area around the pool was essential to the continued stability of the pool.

Guy denied having seen the instruction book or having discussed the stabilizing function of the deck with the Stanleys.

After observing all of the witnesses, the trial judge apparently found the testimony of the Stanleys to be more credible. Under our scope of appellate review, where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact shall not be disturbed on appeal absent manifest error. Arceneaux v. Do-mingue, supra. We find no manifest error.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are to be paid by defendant-appellant.

AFFIRMED.

      . A pool kit consists of all the parts necessary to install an "inground” pool. The purchaser is responsible for the labor, either by doing it himself or by contracting it out.


text:
    Ned O. MORRIS v. MANUFACTURERS’ ENTERPRISES, INC.
    No. 83 CA 0128.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Glynn A. Long, Donaldsonville, for plaintiff-appellee Ned 0. Morris.
    F. Barry Marionneaux, Plaquemine, for defendant-appellant Manufacturers’ Enterprises, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Ned 0. Morris filed suit for damages against his former employer, Manufacturers’ Enterprises, Inc. (MEI), alleging that he was wrongfully terminated from a contract of employment. From a judgment rejecting his claim, Morris appeals.

In this appeal, Morris contends that the trial court erred in accepting the testimony of MEI’s witnesses, in rejecting his testimony, and in concluding that there was just cause for his discharge.

MEI is a Louisiana corporation engaged in the maintenance and overhaul of petrochemical plants. Morris began working for Southern Industrial Supplies, a subsidiary of MEI’s parent company, in January 1981. On April 2, 1981 Morris and MEI entered into a written contract of employment for a one year term.

Morris was assigned to work as a planner trainee on a job being performed by MEI for a company referred to as “Syn-crude” in Alberta, Canada. His primary duty was to maintain a planning board at the jobsite. This board was supposed to reflect the status of work being performed on the jobsite and was used by Syncrude and its contractors to keep abreast of work that was being planned, work that was being performed, and work that had been completed.

On June 10, 1981, Morris was notified by letter from Michael Campesi, vice-president of MEI, that his employment was terminated. In the letter, Campesi cited problems in MEI’s planning and scheduling department as his reason for discharging Morris.

The primary issue presented to the trial court was whether MEI had serious grounds for discharging Morris. Louisiana Civil Code Article 2749 provides:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

The trial court found that MEI had good cause for terminating Morris. Campesi, Wallace Burns, MEI’s chief planner, and Clay Rickley, MEI’s general manager, all testified that they received complaints from Syncrude management about Morris’ performance. Campesi testified that he made two trips to Canada to speak to Morris, and on both occasions he informed Morris of the importance of keeping the planning board up to date and cautioned him about spending too much time in the field. Both Burns and Rickley testified that Morris failed to keep the planning board up to date.

Morris testified that no one complained to him about the quality of his work and denied having any discussion with Campesi. He also testified that the planning board was kept up to date.

The trial court chose to believe the testimony of MEI’s witnesses and concluded that there was good cause for Morris’ termination. After reviewing the record, we cannot say that this finding was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Further, when testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact by the trier of fact should not be disturbed on appeal. Otzenberger v. Atlas Construction Co., 408 So.2d 363 (La.App. 1st Cir.1981).

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Guy H. MILES, et ux v. FLOR-LINE ASSOCIATES, et al.
    No. 83 CA 0132.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      David Vaughn, Baton Rouge, for plaintiff-appellant Guy H. Miles and Barbara Miles.
    Stephen W. Glusman, Baton Rouge, for defendant and third party plaintiff-appellee J.C. Penney Co., and Liberty Mut. Ins. Co.
    Richard Reed, Baton Rouge, for defendant-appellee Flor-Line Associates.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for damages arising out of a purse snatching incident in the parking lot of Cortana Mall.

Plaintiff Barbara Miles was the victim of unknown assailants on April 2, 1980, at approximately 8:45 p.m. in the J.C. Penney Company parking lot at Cortana Mall. Cortana Mall is a large shopping complex in Baton Rouge. The mall, including its 130 stores and 8,067 parking spaces, spans 110 acres. The individual stores do not provide their own security service, but pool their resources and contract for security services with Flor-Line Associates.

On the night of the occurrence, Mrs. Miles and her family had been shopping in the mall. After completing their shopping, Mrs. Miles, accompanied by her oldest son (age 14) and daughter (age 12), exited the mall and began walking toward their car. Mr. Miles and the younger son were to leave the mall in a separate vehicle.

As Mrs. Miles and her two children proceeded down the row of parked vehicles to their car, the children were about twenty yards ahead of their mother. A nearby ear then backed out beside Mrs. Miles. At approximately the same time, someone approached Mrs. Miles from behind, pushed her into the backing car, and struck her on the head with a metal object, rendering her unconeious. A passenger in the car then grabbed Mrs. Miles’ purse, and the car sped off.

During the purse snatching incident, Mrs. Miles was knocked to the ground and sustained numerous injuries. Mrs. Miles suffered fractured facial bones, a strained biceps with accompanying tendonitis, and a large hematoma on her right arm. The plaintiff also sustained property damage, resulting from the loss of her purse and its contents.

In February, 1981, Mrs. Miles filed suit against Flor-Line Associates, Sears, Roebuck & Co., and J.C. Penney, Inc. for personal injuries and property damage. The trial court denied the claim of plaintiff-appellant, Barbara Miles, for damages sustained on the premises of defendant-appel-lee, J.C. Penney Company, Inc. The trial court also denied plaintiff’s claim for damages against defendant-appellee, Flor-Line Associates, who provided security for the mall and its parking area.

In applying the duty-risk analysis, the trial judge held that appellees did not have a duty to provide “an absolute guarantee of security.” While acknowledging that the security at Cortana Mall at the time of the attack on plaintiff may have been low, the trial court stated that the shopping mall is well-lighted and located in a low-crime area. The trial judge also pointed out that the incident with Mrs. Miles happened so quickly that, even with security guards nearby, the attack and purse snatching would have occurred.

Appellant appeals the denial of her claim for damages, contending that the trial court erred as follows:

(1) In not finding that appellees had a duty to protect plaintiff from attack in light of appellees’ knowledge of criminal activities at the mall and
(2) In not finding that appellees had a duty to warn plaintiff of the possibility of criminal attack because of their knowledge of criminal activities in the area.

Appellees’ duty is limited to the exercise of reasonable care. Pennington v. Church’s Fried Chicken, Inc., 393 So.2d 360 (La.App. 1st Cir.1980). As was stated in Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64, 65 (La.App. 4th Cir.1979):

“A store owner is under a duty to take reasonable care for the safety of his patrons, but he is not the insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973); DeHart v. Travelers Ins. Co., 10 So.2d 597 (La.App.Orl.1942); Matranga v. Travelers Insurance Co., 55 So.2d 633 (La.App.Orl.1952). It has also been stated that a proprietor of a public place has a duty to protect his patrons from injuries at the hands of third parties when it is within his power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir.1965) (emphasis added).”

The duty to protect business patrons does not extend to the unforseeable or unanticipated criminal acts of an independent third person. Pennington v. Church’s Fried Chicken, Inc., supra. The owner or management, however, does have a duty to protect patrons when it has knowledge, or can be imputed with knowledge, of the third person’s intended conduct. See Anderson v. Clements, supra.

A police computer printout of the crimes committed at Cortana Mall was made part of the record. This printout reveals that most of these crimes occurred inside the mall and were offenses perpetrated against the store owners. Although there are numerous instances of theft from automobiles, the incidents involving criminal assaults on persons are random and isolated cases. The computer printout lists only six instances of purse snatching at Cortana Mall in the four year period from 1977 to 1980.

From these facts alone, we are unable to say that the criminal activities at the mall were sufficient to require the posting of warning signs or an increase in the number of security guards.

From the record, it is clear that the mall parking area is well-lighted. The mall manager testified that on each section post there are four — 1,000 watt light bulbs. Mrs. Miles parked her car near the “section 8” post on April 2, 1980, and did not recall any of the lights being out the night she was assaulted. Appellant’s security experts also acknowledged that Cortana’s parking area is well-lighted.

In addition, Flor-Line provides security personnel for the mall. Guards are posted both inside the building and in the parking area surrounding the building. Each guard is equipped with radio equipment, which helps the security personnel to communicate disturbances to one another. Motorized scooters are also utilized to assist the security guards in patrolling the parking areas. The number of guards employed varies daily. On busy weekends and holidays, as many as six guards provide security for the mall, including personnel who are posted on the roof of the mall. On days when mall business is somewhat slow, the security is diminished to correspond to the amount of business at the mall. Weekdays were usually slow, and the number of guards on duty on those days was normally cut to a minimum. On Wednesday, April 2, 1980, two guards provided mall security.

As found by the trial judge, the purse snatching occurred very quickly. This was substantiated by plaintiffs testimony and by the testimony of plaintiffs children. Mrs. Miles stated that the incident took place so quickly that she did not have time to call out for help. The Miles children testified that they looked back and saw a car backing beside their mother and that when they glanced back a second time she was on the ground. There was also testimony by the children that they heard no commotion and, at first, only believed their mother had slipped in a puddle of water.

Under these circumstances, the trial court correctly held that neither appellee could have prevented the assault and purse snatching, and that neither appellee breached its duty to provide reasonable care. Ap-pellees exercised reasonable care to safeguard the mall patrons and had no opportunity to prevent the act perpetrated against Mrs. Miles.

For these reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Summary judgment was granted in favor of Sears, Roebuck & Co., which judgment was not appealed.

        . Shoplifting, forgery, issuing worthless checks, and other offenses of this nature comprised the bulk of the criminal offenses committed at Cor-tana Mall.

      . In 1980, there were three reported purse snatching incidents, including the one which is the subject of the case sub judice. In 1979, there were only two purse snatchings. During the proceeding year, 1978, no purse snatchings occurred. And in 1977, there was but one purse snatching incident.


author: LANIER, Judge.

text:
    TERRA DEVELOPMENT CORPORATION v. SOUTHLAND DRAGWAY, INC.
    No. 83 CA 0134.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Robert Prejeant, Houma, for plaintiff and appellant.
    Peter Frank Liberto, New Orleans, for defendant and appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for a declaratory judgment by a lessee of immovable property against a prior lessee of the same property seeking to terminate and cancel the prior recorded lease. The trial court refused to cancel the first lease and the second lessee took this suspensive appeal.

FACTS

On August 31, 1968, Dennis Falterman leased a tract of land containing approximately 114 acres located in Terrebonne Parish, Louisiana, to Delta Marine Engineering, Inc. (Delta). The written lease agreement is recorded in the conveyance records of Terrebonne Parish. On March 26, 1970, Delta assigned the lease to South-land Dragway, Inc. (Southland). This written assignment agreement is recorded in the conveyance records of Terrebonne Parish.

On February 23, 1979, Falterman leased the property which was the subject of the Delta-Southland lease and another tract of land not pertinent to these proceedings to Terra Development Corporation (Terra). This written lease agreement is recorded in the conveyance records of Terrebonne Parish. Terra filed this suit alleging that the lease between Falterman and Southland terminated on August 31, 1978, because Southland failed to timely exercise the option to renew the lease for the period commencing September 1, 1978. Falterman was not made a party plaintiff or defendant in this suit.

FAILURE TO JOIN INDISPENSABLE PARTY

An indispensable party to an action is one whose interest in the subject matter is so interrelated that a complete and equitable adjudication of the controversy cannot be made unless he is joined in the action. La.C.C.P. art. 641. A party is deemed indispensable only when that result is absolutely necessary to protect substantial rights. State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973). The failure to join an indispensable party may be noticed by an appellate court on its own motion. La.C.C.P. arts. 645 and 927. When a party seeks declaratory relief, “all persons shall be made parties who have or claim any interest which would be affected by the declaration, ... ”. La.C.C.P. art. 1880.

A lease is a contract by which one party (the lessor) gives to another the enjoyment of a thing, and the other (the lessee) agrees to pay a fixed price for that right. La.C.C. art. 2669. Because of the nature of the lease contract, the lessor has certain obligations (La.C.C. art. 2692 et seq.) and the lessee has certain obligations (La.C.C. art. 2710 et seq.). The obligations assumed by the lessor and lessee in the Delta-Southland lease are different from those assumed in the Terra lease. The Delta-Southland lease has a primary term of two years with options of renewal for two year and five year periods. If all options are exercised, the lease would remain in effect until August 31, 2008. The rental during the first year of this lease was $350 per month. This rental was increased each year by $50 per month until 1978, at which time the monthly rental was to be determined by the consumer price index in effect at that time using $833.33 as the base figure. This lease covered approximately 114 acres.

The Terra lease has a primary term of two years commencing on February T, 1979. The lessee has the option of renewing the lease for two and ten year periods which, if exercised, would maintain the lease in effect until January 31, 2069. During the first three years of the lease, the rental was $1,000 per month. During the fourth through the tenth years of the lease, the rental is $1,750 per month. Commencing with the eleventh year of the lease, the rent is to be determined by the consumer price index in effect at that time using $1,500 as the base figure. This lease covers the same 114 acres covered by the Delta-Southland lease and a second tract of land for which acreage is not given.

Falterman (as lessor) has substantial rights in the Delta-Southland lease. The rights of Falterman, as well as those of Southland, must be terminated to cancel this lease. A complete and equitable adjudication of this controversy cannot be made unless Falterman is joined as a party. Therefore, Falterman is an indispensable party. Cf. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727 (1966).

In addition, pursuant to La.C.C.P. art. 1876, a court may refuse to render declaratory relief where such relief, if rendered, would not terminate the controversy giving rise to the proceeding. Since Falterman is not a party to these proceedings, any judgment by this court would not bar him from instituting a new action to determine his legal relationships with Southland and/or Terra. La.C.C. art. 2286; La.C.C.P. art. 1880. Cf. R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980). The record indicates that Falterman is owner of 20% of the stock of Terra. In this posture, it is not unreasonable to assume that if we were to affirm the trial court’s action upholding the Delta-Southland lease Falter-man individually as lessor would institute a separate suit to attempt to cancel it.

Since La.C.C.P. art. 641 provides that no adjudication of an action can be made unless all indispensable parties are joined therein, the appropriate action to be taken when an appellate court notices the absence of an indispensable party is to remand the case to the trial court for the joinder of the indispensable party and a retrial of the case. Blanchard v. Naquin, 428 So.2d 926 (La.App. 1st Cir.1983), writ denied 433 So.2d 162 (La.1983); Edmonson v. Abell, 423 So.2d 100 (La.App. 1st Cir. 1982).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. This case is remanded to the trial court for the purpose of joining Dennis Falterman as an indispensable party to these proceedings and for a retrial of the case. The appellant is cast for all costs of this appeal.

REVERSED AND REMANDED.


text:
    James ABNEY v. ALLSTATE INSURANCE COMPANY and Jerry Brandin Construction Company.
    No. 83 CA 0138.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Robert W. Drouant, New Orleans, for plaintiff-appellant.
    Lawrence J. Duplass, New Orleans, George Scariano, Metairie^ for defendant-appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the finding by jury of no breach of Allstate’s homeowner’s policy and the trial court’s judgments granting Allstate’s contractor’s exception of no right or cause of action and first accepting and then amending the jury verdict.

The issues on appeal are: 1) the grant of Allstate’s contractor’s exception of no right or cause of action, 2) the amendment of the judgment, 3) the breach of Allstate’s homeowner’s policy, 4) the date from which interest should run, and 5) the assessment of costs.

We reverse and remand.

Plaintiff’s home was damaged by fire. Allstate, his homeowner’s insurer, sent an adjuster who inspected the damage and contracted with Jerry Brandin Construction Company (Brandin) to make the necessary repairs at a cost of $10,398.38.

Approximately two weeks after work had begun, plaintiff became dissatisfied with the quality of the work and the failure to remove all charred building materials. He complained but was assured the problem would be taken care of. However, after checking again on the progress, plaintiff was still dissatisfied and at a meeting advised he no longer wanted Brandin on his property.

Plaintiff later contracted with Snap Cabinets to repair his home at a cost of $10,-800.00.

Plaintiff submitted a proof of loss in March of 1981 requesting $16,319.37 for repairs to the structure, $3750.00 for six months living expenses of $625.00 per month, $890.00 for replacement of household appliances, $1008.00 for fourteen days of lost work and $8032.63 for damage to contents. Allstate tendered checks in “final settlement” in May of 1981 in the amounts of $2616.53 for contents, $850.00 for living allowance and $5975.63 for repairs to the structure, representing the difference between Brandin’s total estimate and the amount paid Brandin for the work it did.

Plaintiff filed suit against Allstate and Brandin requesting damages and expenses incurred. Brandin was dismissed on an exception of no cause or right of action and the jury returned a verdict for Allstate, finding that Allstate did not breach its contract with plaintiff. Plaintiff then filed a motion for new trial and/or additur. The trial judge awarded plaintiff $9442.16, the amount tendered by Allstate prior to trial.

Plaintiff argues that the trial court erred in granting Brandin’s exception of no right or cause of action alleging that a cause of action is stated in tort, quasi-contract or with plaintiff as a third party beneficiary of the agreement between Allstate and Brandin.

Plaintiff’s petition states that Allstate engaged Brandin to repair plaintiff’s home and that those repairs were not made using accepted standards of the trade. A person may make an advantage for a third person the condition or consideration of his contract. La.C.C. art. 1890. The obligation to repair, in the contract between Allstate and Brandin, was for the benefit of plaintiff. We find that plaintiff has stated a cause of action as a third party beneficiary of the Allstate-Brandin agreement. Once a cause of action is stated as to any ground or portion of a demand, the exception of no cause of action must be overruled. Miller v. McDonald’s Corporation, 415 So.2d 418 (La.App. 1st Cir.1982).

This portion of the decision is reversed and remanded for further proceedings.

We find no basis to sustain an exception of no right of action.

Plaintiff next argues that the trial court erred in failing to grant him a new trial and in amending the verdict by awarding him the amount tendered by Allstate. We agree.

The amended judgment made a substantive change in the decision by ordering Allstate to pay plaintiff $9442.16. Such a change is not allowed under La.C.C.P. art. 1951 and the proper recourse is timely application for a new trial or timely appeal if both parties do not agree to the change. Villaume v. Villaume, 363 So.2d 448 (La.1978).

Allstate argues that a judge can make a substantive amendment after appropriate contradictory proceedings. Plantation Acceptance Corporation v. Stone, 379 So.2d 782 (La.App. 4th Cir.1979), writ denied, 383 So.2d 24 (La.1980).

The record does not contain a transcript of the hearing on plaintiffs motion, but plaintiffs brief stated that during his argument for a new trial, the trial court stopped plaintiffs attorney and told Allstate’s counsel to prepare the amended judgment. The minute entry shows that the case was argued only on the motion for new trial.

While a substantive amendment may be made after appropriate contradictory proceedings, we find that in the absence of evidence of argument of the amendment or stipulation by the parties, the proceedings held were inappropriate.

We have determined that the trial judge effectively granted a new trial and rendered a judgment at the hearing on the motion. If granted, the case must be assigned for hearing in accordance with the rules and practice of the court. La.C.C.P. art. 1977; Mitchell v. Windham, 426 So.2d 759 (La.App. 3rd Cir.1983).

We do not have a final judgment before us since a new trial is pending. The original judgment was vacated when the new trial was granted. Mitchell v. Windham, supra. Therefore, the case must be remanded for further proceedings.

We need not reach the other issues.

For these reasons, the judgment dismissing Brandin on an exception of no cause of action is reversed and the amended judgment is vacated. The case is remanded to the trial court for further proceedings consistent with these findings. Costs are to be paid by the defendants.

REVERSED AND REMANDED.

      . Allstate in its brief, agreed that plaintiff was entitled to this amount.

      . La.C.C.P. art. 1951:
      A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
      (1) To alter the phraseology of the judgment, but not the substance; or
      (2) To correct errors of calculation.

      . La.C.C.P. art. 1977:
      When a new trial is granted, it shall be assigned for hearing in accordance with the rules and practice of the court.


author: CARTER, Judge.

text:
    Elgin D. HILL v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83 CA 0140.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Granted Jan. 27, 1984.

      Robert G. Pugh, Pugh &.Pugh, Shreveport, for appellant.
    R. Gray Sexton, Peter G. Wright, Commission On Ethics For Public Employees, Baton Rouge, for appellee.
    Before PONDER, WATKINS and CARTER, JJ:
   CARTER, Judge.

Appellant, Ms. Elgin Hill, seeks reversal of an order by the Commission on Ethics for Public Employees that she either resign from the Louisiana State Board of Cosmetology or divest herself of any interest in the R & E House of Beauty.

Ms. Hill is a member of the Louisiana State Board of Cosmetology from the Fourth Congressional District. In her capacity as board member, Ms. Hill supervises Edward James Smithers, the Cosmetology Board inspector for the Fourth Congressional District. Mr. Smithers’ performance evaluations, certificates for leave, and applications for wage increase must be authorized by Ms. Hill. Ms. Hill frequently accompanies Mr. Smithers when he inspects beauty salons.

In addition to her work on the Cosmetology Board, Ms. Hill owns a beauty salon (R & E House of Beauty) located in the Fourth Congressional District and works part-time as a cosmetologist in her beauty salon. Ms. Hill is licensed through the Cosmetology Board as a cosmetologist and as a beauty salon owner. Her beauty salon is inspected periodically by Mr. Smithers to insure compliance with pertinent Board regulations.

On May 26, 1981, the Ethics Commission rendered an advisory opinion titled “Opinion regarding the propriety of members of the State Board of Cosmetology owning a substantial economic interest in a beauty salon.” According to the opinion issued by the Commission, a member of the Cosmetology Board who also owns a beauty salon is in violation of certain sections of the Ethics Code, viz., LSA-R.S. 42:1112 B(2) & (3).

On July 29, 1981, the Commission adopted a resolution initiating a private investigation to determine whether Ms. Hill was in violation of the Ethics Code. The resolution stated:

“That Elgin Hill as a member of the Louisiana State Board of Cosmetology, may be in violation of Sections 1112 B(2) or (3) of the Code by continuing to own a substantial economic interest in, or being an officer, director, trustee, partner or employee of, a beauty salon or other facility regulated by and subject to the control of the Louisiana State Board of Cosmetology.”

On April 23, 1982, the Commission concluded its private investigation into the matter and adopted a resolution to file charges against Ms. Hill. A public hearing to consider the charges was held on September 17, 1982. On October 14, 1982, the Commission rendered an opinion in which it ordered Ms. Hill to resign from the Louisiana State Cosmetology Board or to divest herself of an interest in the R & E House of Beauty. Ms. Hill appeals and assigns the following errors:

(1) The Commission erred in not holding that LSA-R.S. 42:1112 C violates the equal protection clause of the 14th Amendment of the U.S. Constitution and the equal protection guarantee of the Louisiana Constitution;
(2) The Commission erred in interpreting the statutory provisions of the Ethics Code and the statutory provisions concerning requirements for membership on the Louisiana State Board of Cosmetology;
(3) The Commission erred by attempting to enforce an unstated “spirit and purpose” of the Ethics Code; and,
(4) The Commission erred in finding that Ms. Hill had an impermissible conflict of interest.

ASSIGNMENT OF ERROR NO. 1

Appellant first argues that LSA-R.S. 42:1112 C denies her equal protection. This provision allows all public employees to disqualify themselves from participation in any matter when a violation of the Ethics Code would result. Board members, however, are not afforded this option and are required to resign or divest.

The issue was recently ruled on in Glazer v. Commission on Ethics, 417 So.2d 456, 460 (La.App. 1st Cir.1982), reversed on other grounds, 431 So.2d 752 (La.1983). The court addressed the issue as follows:

“Equal protection requirements are fulfilled if there is a rational basis for using the classification method so as to attain a legitimate state interest, (citations omitted)
“Because appointed members of boards are generally charged with formulating policy and participating in fundamental decision-making proceedings, there is a rational relationship to the state interest of avoiding conflicts of interest without creating unnecessary barriers to public service, as provided in the Code, (citation omitted) There is a legitimate reason for making a distinction. We find no constitutional infirmity.”

Accordingly, we find no merit in appellant’s assignment of error.

ASSIGNMENT OF ERROR NO. 2

Appellant next argues that the Commission erred in interpreting provisions of the Ethics Code and statutory provisions concerning requirements for membership on the Cosmetology Board.

In urging this assignment of error appellant argues that the Ethics Commission is attempting to expand the law pertaining to qualifications for Cosmetology Board membership. Appellant contends that the Ethics Commission is attempting to prohibit that which is not prohibited by the legislature.

In support of her argument appellant cites Louisiana Milk Com'n. v. Louisiana Com’n. on Gov. Eth., 298 So.2d 285 (La. App. 1st Cir.1974). In the Milk Commission case, the Commission on Governmental Ethics attempted to hold a public hearing to investigate Milk Commission members who were actively engaged in milk producing or processing. It was the position of the Commission on Governmental Ethics that this dual responsibility, i.e., Milk Commission member and milk producer or processor, violated the Ethics Code. The court held that the Commission on Governmental Ethics was without power to hold such a hearing as the statutory qualifications for membership on the Milk Commission required the Commission to be staffed by members who were actively engaged in the milk business.

In the case sub judice there is no statutory requirement that a Cosmetology Board member actively engage in the profession during the time he/she serves on the Board. Appellant’s reliance on the Milk Commission case is misplaced.

LSA-R.S. 37:493 B, which regulates qualifications of Board members, states:

“Board members, other than the executive secretary, shall have been actively engaged for at least five years prior to their appointment, in this state, in the activities described in the definition of ‘operator’ and/or ‘teacher’ as set forth in this part. The board members shall not all be graduates of the same school of art, nor shall any board member be connected directly or indirectly with the ownership of a school licensed in this state.”

The Ethics Commission stated in its advisory opinion dated May 26, 1981:

“The Commission is mindful of the quoted provisions of R.S. 37:493 B requiring that each Board member ‘... shall have been actively engaged for at least five years prior to their appointment ... ’ as an ‘operator’ or ‘teacher’. The Commission views these expressions of the Legislature literally and opines that the qualifying requirement is antecedent in nature.”

We disagree with the Commission’s interpretation of this statutory provision. We do not believe that the grammatical construction of the statute, i.e., shall have been, mandates a finding that a Board member cannot presently be actively engaged as a beauty operator. However, the inquiry cannot end here.

Appellant also argues that the Commission erred in interpreting LSA-R.S. 42:1112 B(2) & (3) of the Ethics Code:

“No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
* * * * * *
(2) Any person in which he has a substantial economic interest of which he may reasonably be expected to know.
(3) Any person of which he is an officer, director, trustee, partner, or employee.”

Concerning the above quoted statute, the Ethics Commission stated in its advisory opinion dated May 26, 1981:

“Application of the proscription contained in Section 1112 B(2) and (3) ... warrants the conclusion that a member of the Louisiana State Board of Cosmetology, who owns a substantial economic interest in a beauty salon or parlor, or who is an officer, director, trustee, partner or employee of an entity that in turn owns a beauty salon or beauty parlor, does by operation of law ‘participate’ in transactions involving both the Louisiana State Board of Cosmetology, on the one hand, and the beauty salon or beauty parlor in which the member owns a substantial economic interest (or in which the member serves as an officer, director, trustee, partner or employee) on the other hand.
“Accordingly, ownership of a substantial economic interest in a beauty parlor or salon by a member of the Louisiana Board of Cosmetology, or the holding by a board member of the position of an officer, director, trustee, partner or employee of an entity that in turn owns a beauty salon or beauty parlor constitutes an activity prohibited by Section 1112 B(2) and (3) of the Code.”

We agree with the Ethics Commission’s interpretation of Section 1112 B(2) and (3) as applied in the case sub judice. We do not see how one can simultaneously own or work in a beauty parlor and sit on the Cosmetology Board without violating the Ethics Code. The function of the Cosmetology Board is to issue, revoke, or suspend licenses for beauty operators and beauty shop owners. In addition, the Board supervises, investigates, and regulates the beauty and hairdressing industry (LSA-R.S. 37:498). Given the generalized nature of the duties of the Cosmetology Board, it is inevitable that a Board member will “participate” in a “transaction” involving the Board and the member owned salon.

In its October 14, 1982 opinion, which dealt specifically with Ms. Hill’s situation, the Commission wrote:

“Respondent, (1) by supervising the investigator who is responsible for the inspections of not only the ‘R & E House of Beauty,’ but also the competitors of that establishment, (2) by periodically reviewing and approving the inspections and other activities of this inspector, (3) by having the responsibility for the review and approval or disapproval of the applications for registration submitted on behalf of not only the ‘R & E House of Beauty/ (4) and generally, by her actions as an active member of the Board of Cosmetology responsible for the administration of the provisions of the Cosmetology Act, does not only factually, but by operation of law, ‘participate’ in transactions in which both she and the ‘R & E House of Beauty' have a substantial economic interest.”

We agree with the findings of the Ethics Commission. It is clear from the statutes quoted above and from the facts recited earlier that Ms. Hill, as a result of her membership on the Board and her position as owner/operator of a beauty salon, is in violation of LSA-R.S. 42:1112 B.

ASSIGNMENT OF ERROR NO. 3

Appellant next argues that the Commission erred by attempting to enforce an unstated “spirit and purpose” of the Ethics Code. Appellant contends that in ordering Ms. Hill to either divest herself of the R & E House of Beauty or to resign from the Cosmetology Board, the Ethics Commission has gone beyond the letter of the law to some vague and undefined “spirit”. We disagree.

The Ethics Commission has stated in its charges against Ms. Hill that she violated the specific provisions of the Ethics Code. In addition, the Ethics Commission found that Ms. Hill’s activities frustrated the “spirit” of the law.

A fundamental purpose to be served by the Code is to insure that “public employees be independent and impartial ... that public office and employment not be used for private gain ... and that there be public confidence in the integrity of the government.” LSA-R.S. 42:1101. Clearly, Ms. Hill’s dual positions violated this defined “spirit” of the Ethics Code.

ASSIGNMENT OF ERROR NO. 4

Lastly, appellant argues that the Commission erred in finding that Ms. Hill had an impermissible conflict of interest. In urging this assignment of error, appellant points to the transcript of the public hearing in which the chairman of the Board of Cosmetology, the Board’s Executive Secretary, the President of the state beauty school association, and a member of the Ethics Commission praised Ms. Hill as a conscientious, honorable and capable member of the Board.

In Glazer v. Commission on Ethics, 431 So.2d 752, 756 (La.1983), the Supreme Court defined conflict of interest as follows:

“A conflict of interest is a situation which would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing. The wrongdoing does not have to occur in order for a prohibited conflict to exist. A public official may have done no wrong in the ordinary sense of the word, but a conflict of interest may put him in danger of doing wrong.”

The Commission has argued in brief, and we agree, that despite Ms. Hill’s good intentions, her responsibilities as a member of the Cosmetology Board and her interests as owner of a beauty salon and self-employed cosmetologist create a conflict of interest. We note that nowhere in the record is there any evidence of any wrongdoing by Ms. Hill. However, because of the circumstances, there is the possibility of an impropriety occurring. It is the purpose of the Ethics Code to avoid even this possibility of impropriety.

For the foregoing reasons, the decision of the Commission on Ethics for Public Employees is affirmed. Costs are to be paid by appellant.

AFFIRMED.


author: CRAIN, Judge.

text:
    INDUSTRIAL ENTERPRISES, INC. v. James H. KIDD.
    No. 83 CA 0141.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Gary M. Cooper, Baton Rouge, for plaintiff-appellant Industrial Enterprises, Inc.
    MacAllynn J. Achee, Baton Rouge, for defendant-appellee James H. Kidd.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This appeal is from a judgment of the trial court which dismissed plaintiff’s suit seeking repayment of an alleged personal loan made to the defendant. Plaintiff appealed.

This matter arises out of a transaction between the plaintiff, Industrial Enterprises, Inc. (Industrial), and the defendant, James H. Kidd, president of Louisiana Petroleum Services, Incorporated (Louisiana Petroleum).

On February 8, 1980, a check was issued from Industrial to Louisiana Petroleum in the amount of $5,941.39. The defendant cashed the check at Fidelity National Bank in Baton Rouge and then deposited the cash in a company account at Baton Rouge Bank.

A promissory note, payable on demand was then executed on April 17, 1980, by Louisiana Petroleum payable to the order of Industrial for the principal sum of $6,400.00.

On June 2, 1981, a letter was sent by plaintiff’s attorney addressed to Louisiana Petroleum, attention Jim Kidd, demanding payment on the demand note. No payment was made, and plaintiff filed suit against Kidd for repayment of the loan claiming that the loan was strictly personal. Kidd answered denying any liability alleging that the loan was between the two companies only.

After trial on the merits, the trial judge in his oral reasons held that the evidence of the indebtedness was written and that the parol evidence rule prohibits introduction of evidence to contradict or modify the written agreement. Plaintiff claims on appeal that this was error. We affirm.

Appellant argues that the indebtedness was based on an oral agreement entered into prior to the issuance of the check and execution of the promissory note. Consequently, it is argued that the testimony of those involved in the transaction should be admitted to set forth the terms of the agreement. The appellant’s specification of error addresses a factual finding of the trial judge as to whether the indebtedness was based on an oral agreement or on the promissory note. The trial court determined the latter. It is well established that where there is conflict in the testimony, the trial court’s factual determination will not be disturbed on appeal absent a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

At trial there was conflict in the testimony. Industrial’s vice-president, Terry Smith, testified to an oral agreement between him and Kidd for a personal loan he made to Kidd. Kidd testified that the loan was between the two companies only, and the indebtedness was represented by the promissory note. Under the standard for appellate review of fact established by Canter, the reviewing court must give great weight to factual conclusions of the trier of fact and where there is conflict in the testimony reasonable evaluations of credibility will not be disturbed upon review.

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are to be paid by the appellant.

AFFIRMED.

      . The written evidence of the indebtedness was the promissory note, not the check as suggested by the trial judge in his oral reasons for judgment.