author: CIACCIO, Judge. REDMANN, C.J., PER CURIAM. REDMANN, Chief Judge,

text:
    Mr. & Mrs. Robert Leland REDFEARN, Mr. & Mrs. W. Scott Gibson, and Harry T. Howard, III v. Clara Binet, wife of/and Jacques Jules CREPPEL, d/b/a “Columns Hotel”.
    No. CA 0142.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearings Denied Sept. 22, 1983.

      Oliver S. Delery, New Orleans, for defendants-appellants.
    Jarrell E. Godfrey, Jr., L. Havard Scott, III, New Orleans, for plaintiffs-appellees.
    Before REDMANN, C.J., and GARRISON and CIACCIO, JJ.
   CIACCIO, Judge.

Defendants, owners of the property located at 3811 St. Charles Avenue in New Orleans, Louisiana (known as “The Columns Hotel”) have filed a suspensive appeal from a judgment of the district court which enjoined them from operating a bar and/or lounge at that location and from serving any alcoholic beverages upon the premises, except to guests at private parties held at that location. Plaintiffs, residents of the area, answer the appeal asking that the defendants also be enjoined from operating a hotel and restaurant, and that they be precluded from serving any alcoholic beverages. We reverse in part, amend the judgment of the district court and affirm.

The issues which are presented by this appeal are: (1) Has the plaintiffs’ action prescribed? (2) Do the plaintiffs have standing to sue for injunctive relief? (3) Did the trial court err in enjoining the operation of the bar? (4) Did the trial court err in refusing to enjoin the sale and/or service of all alcoholic beverages? (5) Did the trial court err in refusing to enjoin the operation of the restaurant and the “hotel”?

The facts presented are as follows:

The property which is the subject of this dispute is located at 3811 St. Charles Avenue in New Orleans, La., in an area'which is zoned RM-3. It has been operated for many years under the name “The Columns Hotel”, renting rooms to transient guests and renting one apartment on a long term lease. The property had undergone construction repairs on several occasions since 1976. Prior to the purchase by the defendants, the building was closed for business from March, 1977 through April, 1978 due to repairs. On June 14, 1978, the City of New Orleans issued a permit “to use and occupy the building as a hotel and restaurant]”

The defendants, Mr. and Mrs. Jacques Creppel, purchased the property in June of 1980. On August 15, 1980 the Department of Safety and Permits for the City of New Orleans wrote to the defendants advising them that no expansion of the restaurant would be allowed. On August 18, 1980 the City inspected the property and the inspection report noted that the restaurant consisted of two rooms and twenty tables with coffee being served, but no evidence of cooking. At the time the kitchen showed only a small sink. The report further stated that there were 28 bedrooms; 12 of the bedrooms had private baths and the remaining 16 rooms shared 2 baths.

In late August, 1980, Mr. Creppel filed an affidavit with the City which accompanied his liquor license application. The affidavit indicated that “a restaurant with a bar is indispensible to the operation of The Columns Hotel for the benefit and enjoyment of the hotel guest.” The City issued the liquor license and renewed it on November 20, 1980.

The record and exhibits indicate that considerable time and expense was incurred by the owners in renovating The Columns into its current condition. Mr. Creppel testified that he converted one bedroom into a bar and two former bedrooms were transformed into a room for parties, by the removal of a partition wall. Mr. Creppel stated that in 1981 there were several parties hosted at The Columns in which there were one hundred guests in attendance. He indicated that there was one party which involved two hundred guests and which necessitated the use of the front porch of the building.

The neighbors were concerned over congested parking, increased traffic and garbage resulting from the operation of the restaurant and bar at The Columns and filed suit on August 21, 1981 seeking to enjoin these business operations.

After a trial on the merits, the district court enjoined the defendants from operating the bar and from serving alcoholic beverages except to guests at private parties, holding that the operation of the lounge was a prohibited addition or expansion of an existing non-conforming use. The district court refused to enjoin the restaurant operation, finding, among other reasons, that it was an existing non-conforming use. PRESCRIPTION

The defendant-appellants have filed with this Court an exception of prescription wherein they allege that the plaintiff-appel-lee’s suit was not filed timely. They reason that under Louisiana Revised Statute Title 33 Section 4727 and Comprehensive Zoning Ordinances of the City of New Orleans of 1970, that the plaintiffs had forty-five (45) days from the issuance of the certificate by the Department of Safety and Permits to appeal to the Board of Zoning Adjustments.

We find that the appellants’ exception of prescription is without merit and therefore the exception is overruled.

In the case of Brennan v. Board of Zoning Adjustments of the City of New Orleans, this Court rejected an identical argument. 371 So.2d 324 (La.App., 4th Cir., 1979). In that case we stated the following.

Appellants first contend that intervenors, were they to challenge the validity of the permit, had only 45 days from the time of its issuance to appeal. They cite Abaunza v. Roussou, 339 So.2d 524 (La.App. 4th Cir., 1976), to support this proposition. While it is true there is a 45-day limitation for appeals from any decision of the Director of Safety and Permits, this does not supersede the provision of R.S. 9:5625 permitting actions to enjoin the violation of zoning regulations within a two year period. Brennan v. Board of Zoning Adjustments for the City of New Orleans, supra at 325.

Since the plaintiffs brought this suit for injunction within two (2) years from the first act constituting the commission of the violation of the zoning restriction, the suit had not prescribed prior to its filing.

STANDING TO SUE

The appellants contend that the plaintiffs-appellees did not give sufficient proof of their “injury, loss or damage” in order to support the injunctive relief they sought and obtained.

Neighboring residents may enjoin a landowner from violating city zoning ordinances. Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (La., 1963); Adams v. Brian, 212 So.2d 128 (La.App., 3rd Cir., 1968), writs ref. 252 La. 880, 214 So.2d 549. The right to seek injunctive relief is contingent upon a showing of some irreparable harm. Adams v. Brian, supra. In order to determine if a neighbor has been or will be damaged by the violation of the zoning ordinance, an examination of the evidence is required. Wright v. DeFatta, supra.

The courts have recognized an individual’s right to seek injunctive relief where he has made a showing that he would be materially and adversely affected in the enjoyment of his home as a result of his neighbor’s violation of the zoning ordinances. Wright v. DeFatta, supra.

In the instant case, we find that the plaintiffs have proved by a preponderance of the evidence that the operation of The Columns’ bar and restaurant has materially and adversely affected them in the enjoyment of their homes.

Carol Jean Gibson is the owner of the property located at 1615 Peniston Street, which is within 100 feet of The Columns Hotel. She testified that as a result of the operation of the bar and restaurant at The Columns there has been more congested parking in the area, incidents in which her driveway is blocked by parked vehicles, an increase of trash which appears on her lawn between 10 p.m. and 7:30 a.m., and she sees “drunks” coming from the direction of The Columns.

Lynn Redfearn, a resident of 3717 Caron-delet Street, which is one block from The Columns, attested to the dangerous and congested traffic and parking conditions which have occurred since the opening of the bar at the Columns Hotel.

The incidents of increased traffic and litter resulting from the operation of The Columns bar and restaurant was corroborated by the testimony of John Geiser, an officer of the St. Charles Avenue Committee.

We are satisfied that the plaintiffs have made a sufficient showing of harm to entitle them to seek injunctive relief in this case.

ZONING VIOLATION

The appellants argue that the defendants should be allowed to continue the operation of The Columns, with its bar and restaurant, because the property was stipulated to be a “hotel” by the parties to the litigation and was so recognized by the City’s Department of Safety and Permits. Therefore, appellants reason that the property is classified as a non-conforming use hotel and thus, the restaurant and bar, which were licensed by the City, are acceptable accessory uses under this classification. The appellants further argue that they were within their rights in converting the sleeping room(s) into a bar as the local zoning ordinances allow the conversion of one non-conforming use to another. We do not agree.

Appellants argue that the property was stipulated to be a “hotel” and was recognized by the City of New Orleans Department of Safety and Permits as being so classified. However, neither the stipulation of the parties nor the ministerial pronouncements of a municipal board or department can usurp the clearly defined duty of the judiciary to interpret the law. La. Const. Art. 2 §§ 1-2, Art. 5 § 1. See: City of New Orleans v. Langenstein, 111 So.2d 363, 369 (La.App., Orleans, 1959).

The Columns does not meet the definition of a “hotel” as that term is utilized in the local zoning ordinances.

Article 14 Section 64 of the Comprehensive Zoning Ordinances for the Parish of Orleans defines a “hotel” as follows:

Hotel. A building containing 20 or more individual sleeping rooms or suites, having each a private bathroom attached thereto, for the purpose of providing overnight lodging facilities to the general public for compensation with or without meals, excluding accommodations for employees, and in which ingress and egress to and from all rooms is made through an inside lobby or office supervised by a person in charge at all hours. Where a hotel is permitted as a principal use, all uses customarily and historically accessory thereto for the comfort, accommodation and entertainment of the patrons, including the service of alcoholic beverages, shall be permitted.

Paul May was employed as a zoning commentator, with the Department of Safety and Permits for the City of New Orleans and was qualified as an expert in this field. Mr. May testified, in response to a hypothetical question, that if The Columns had twenty-two (22) rooms that could be used as sleeping rooms and approximately eight (8) separate baths for all twenty-two (22) rooms, that the building did not qualify as a “hotel” for purposes of the City’s zoning ordinance. We agree with this conclusion. Under this rationale, The Columns cannot enjoy the accessory accommodations of a hotel, that is, the operation of a bar and restaurant and the service of alcoholic beverages.

Moreover, Paul May testified that The Columns is located in an RM-3, Multiple Family Residential District. A “hotel” is not a permitted use within the confines of that zoning classification; M.S.C. Article 5, Section 5.2, Comprehensive Zoning Ordinance of the City of New Orleans (1970) provides:

Section 5. Uses Not'Permitted Are Prohibited.

For the purpose of this Ordinance, permitted uses are listed for the various districts. Unless the contrary is clear from the context of the lists or other regulations of this Ordinance, uses not specifically listed are prohibited.

Accordingly, it follows that the accessory uses must also be prohibited as they cannot exist in the absence of the necessary principal use.

Even assuming for the sake of argument, that The Columns is a non-conforming use hotel, the accessory use of the bar, party rooms and expanded restaurant facility would be prohibited as constituting a less restrictive use and as the expansion of a non-conforming use.

The contention that certain property has acquired a legal non-conforming status and thus, that its use cannot now be restricted, is an affirmative defense which the defendant must prove by a preponderance of the evidence. City of Lake Charles v. Frank, 350 So.2d 233 (La.App., 3rd Cir., 1977); City of New Orleans v. Cantelli, 136 So.2d 838 (La.App., 4th Cir., 1962). In order to meet this burden, the defendant must show that the property was used for non-conforming purposes at the time the ordinance was enacted, and that the neighborhood knew at the time that it was being used for that purpose. City of Lafayette v. Black, 336 So.2d 982 (La.App., 3rd Cir., 1976), writ den. 339 So.2d 850 (La., 1976). A non-conforming use will be recognized if the property has been operated in a nonconforming status for a period of two years. R.S. 9:5625(B). The purpose of allowing a non-conforming use is to avoid the imposition of hardship on the owner of property already devoted to a use which is proscribed under the new zoning ordinance. City of Lake Charles v. Frank supra. The provisions for continuation of a non-conforming use should be strictly construed to secure their gradual elimination. City of Lake Charles v. Frank, supra. If the property becomes and remains vacant for a period of six (6) continuous months, it shall lose its non-conforming status. M.S.C. Article 12, Section 2, Comprehensive Zoning Ordinance of the City of New Orleans (1970).

Appellees argue that this property lost its non-conforming use status because no business was operated at this location from March, 1977 through April, 1978. The trial court found that The Columns was being operated in a non-conforming use status and therefore, apparently found that the appellees failed to prove that this classification had been lost. We have reviewed the record in this regard and we are satisfied that the trial court was not clearly wrong in its finding.

We agree that the failure to operate a non-conforming business for a continuous period in excess of six (6) months results in the loss of the non-conforming status. However, we note from the record that the operation of renting rooms to transient guests was again instituted in June, 1978 and continued publically and without interruption for at least two (2) years before suit was filed. Therefore, under the provisions of R.S. 9:5625(B), the property again enjoyed its prior non-conforming status.

The preservation of a non-conforming use protects only the right to continue the use of the same quality or character as existed before the date of the Comprehensive Zoning Ordinances and does not give the right for a change in use to a use of a lower grade or classification nor for a greater degree of non-conformity. City of Baton Rouge v. Hebert, 378 So.2d 144 (La. App., 1st Cir.1979) writ ref. 380 So.2d 210; City of Lake Charles v. Frank, supra; Spinato v. Lowe, 113 So.2d 73 (La.App., Orleans, 1959), writ granted, other grounds, 239 La. 604, 119 So.2d 480; City of New Orleans v. Langenstein, supra. The nonconforming use shall not be expanded into any other section of the building and no structural alterations, except those required by law or ordinance, shall be made in the non-conforming building or to the non-conforming part of the building. City of New Orleans v. Langenstein, supra.

The conversion of a sleeping room of The Columns into a bar would constitute a less restrictive use and is impermissible. M.S.C. Article 12 Section 4 Comprehensive Zoning Ordinance for the City of New Orleans (1970). Further, this is a prohibited expansion of the existing non-conforming use. Since we find that The Columns is not a “hotel” the operation of the bar is not a permissible accessory use, and the sale of alcoholic beverages in such a bar is prohibited.

Likewise, the conversion of the two sleeping rooms into public rooms for the purpose of holding private parties and receptions is a prohibited expansion of a non-conforming use, a change of a non-conforming use to a less restrictive classification and is violative of the local zoning ordinance. M.S.C. Article 12, Section 4, Comprehensive Zoning Ordinance For the City of New Orleans (1970).

Appellees argue that the opening of the restaurant at The Columns Hotel was an expansion or change of a non-conforming use to a less restrictive classification in violation of the local zoning ordinances. In the instant case, the district court found: “There was a restaurant there before, there is a restaurant there now...” In this regard the plaintiffs were unsuccessful in proving that the non-conforming status, acquired by the restaurant through its operation for at least two years, was lost by a vacancy for six (6) continuous months. Our review of the record does not convince us that the trial court was clearly wrong in concluding that the restaurant had acquired a non-conforming status.

In June, 1978 the City issued a use and occupancy permit for the operation of a hotel and restaurant at 3811 St. Charles Avenue in New Orleans, Louisiana. The owner of the property, Mr. Creppel, testified that in June 1970 the property was equipped for a restaurant and he had been advised by the prior owners that, a restaurant was being operated there. He further testified that a few dinners had been served at that location since his acquisition of the property in June 1980. A City inspection report of August 18,1980 indicated: “There are two rooms that contain about twenty (20) tables, that is presently being used to serve coffee only. No evidence of cooking going on. The kitchen shows that only a sink has been installed.”

Despite the disparity in the description of the operation of the restaurant at The Columns, the court accepted the defendants’ testimony that a restaurant had been operated at the location for sufficient period of time to confer a non-conforming status upon that facility. We cannot say that this finding is clearly wrong.

However, there are indications in the record that the restaurant facilities of the Columns have been expanded since the acquisition of the property by the current owners, Mr. and Mrs. Creppel. On August 15,1980, the owners were placed on notice by the New Orleans Department of Safety and Permits that no expansion of the restaurant would be allowed. Any expansion of a nonconforming use and a change of a non-conforming use to a less restrictive classification and is violative of the local zoning ordinances. M.S.C. Article 12 Section 4, Comprehensive Zoning Ordinance For the City of New Orleans (1970). Therefore, insofar as the restaurant facility at The Columns was expanded after August 21, 1979, less than two years prior to the filing of this suit, it will be enjoined.

The serving of alcoholic beverages in the restaurant area, as herein defined and limited, is not prohibited, per se, because of the restaurant’s non-conforming status. The Zoning Ordinance permits the sale of alcoholic beverages in restaurants located in certain apartment complexes in the RM-8 district, limiting the sale to residents and their guests. Article 5.3.7 and .8. We find that the sale of alcoholic beverages to patrons of a restaurant, and the use of part of the restaurant area for the operation of an accessory bar would not be prohibited. However, we offer no opinion regarding the right of appellants to obtain liquor permits for use in conjunction with their legally non-conforming restaurant, as that issue is' not before us on appeal.

We are of the opinion, however, that the zoning ordinance does not prohibit defendants from maintaining their limited nonconforming restaurant use in different rooms from those used prior to August 21, 1979, as long as their total square footage is not greater. The neighbors have the right not to have the use expanded, but we do not consider the use of one room rather than another of equivalent size an expansion, when the entire building is nonconforming. Defendants may therefore be allowed to select which portion of their space is to remain in restaurant (including bar) use, as long as the total area is not increased over that used prior to August 21, 1979.

Accordingly, for the reasons assigned, the judgment of the district court enjoining Clara Binet, wife of/and Jacques Jules Creppel, their agents, employees and all persons acting or claiming to act on their behalf from carrying on the operation of a bar and/or lounge at 3811 St. Charles Avenue, New Orleans, Louisiana is amended and affirmed, in part, and, insofar as that judgment reserved the rights of the defendants) to serve alcoholic beverages to guests at private parties held at said location, it is reversed; further, the judgment is amended, to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Clara Binet, wife of/and Jacques Jules Creppel, their agents, employees and all persons or parties acting or claiming to act on their behalf are enjoined from operating a bar or lounge except as part of the limited restaurant use.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants are enjoined from conducting parties, meetings or receptions in those former sleeping rooms which were converted to those uses.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants are enjoined from operating a restaurant at 3811 St. Charles Avenue, except in rooms whose total area does not exceed the square footage of the area used for restaurant purposes prior to August 21, 1979.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Clara Bi-net, wife of/and Jacques Jules Creppel, their agents, employees and all persons or parties acting or claiming to act on their behalf, are enjoined from selling and/or serving any and all alcoholic beverages upon the premises 3811 St. Charles Avenue, New Orleans, Louisiana except for the sale and/or service of alcoholic beverages in conjunction with the operation of the legally non-conforming restaurant facility provided they have obtained all necessary City and State alcoholic beverage permits.

Each party shall bear their own cost of this appeal.

REVERSED IN PART, AMENDED AND AFFIRMED.

REDMANN, C.J., concurs.

REDMANN, C.J.,

concurring.

One may agree that The Columns Hotel does not meet the New Orleans zoning ordinance’s definition of a hotel (because some of its rooms do not have private baths), but it also does not meet the ordinance’s definition of a multiple-family dwelling, or that of a rooming house, or — as far as this writer can find — anything else.

That being the case, it appears to have been a reasonable and enforceable stipulation that its nonconforming use is that of a hotel within the meaning of the zoning ordinance. In ordinary language, that surely seems to be its use.

If it is a “hotel,” then its use category is that of zone MS (separated from the actual zoning of RM-3 only by RM-4), for that is the most restricted zone in which hotels (100 rooms or less) are permitted, art. 5 § 7.2.11. Yet that zone also permits restaurants, § 7.2.8, so restaurant use is not a less restricted use than hotel use. Art. 12 § 4 allows a change “to another nonconforming use of the same or a more restricted classification.”

The Columns hotel could not be lawfully converted into a “cocktail lounge,” of course, because that use is not permitted in zones more restrictive than B-l Neighborhood Business District, art. 5 § 9.2.10. But for a restaurant to have a bar does not convert it into a prohibited “cocktail lounge,” because a cocktail lounge is defined as “A place for service or consumption of alcoholic beverages but not including live entertainment,” art. 14 § 2.26. The broadness of that definition, if taken literally, would make a cocktail lounge out of the bar in a person’s own home, and therefore the definition must be understood to mean a building or separated part of a building (“place” is defined as “open, unoccupied space,” art. 14 § 2.89) used principally for service etc. of alcohol. One’s home is not a cocktail lounge, and neither is a restaurant, notwithstanding the use of some portion of either as a bar. Thus The Columns may include a bar within its restaurant space.

But to expand the restaurant space, including any part used as a bar, defendants must meet the parking requirements of the zoning ordinance. Art. 7 § 2.11 specifies that in the case of mixed use in the same building, each use’s parking requirement is treated separately. § 2.12 provides that whenever “a building or use is changed or enlarged in floor area ... to create a need for an increase in parking spaces of 10 per cent or more ... such additional spaces shall be provided” (within 300 feet of the building, § 4.1). (Because RM-3 is a “high density district,” art. 7 § 2.6a, within the zoning ordinance’s parking regulations, a restaurant use is obliged to provide one space for each 250 square feet of floor area by art. 7 § 1, rather than for each 150 square feet as required in low and medium density districts.) Thus defendants may not expand their restaurant use (including its bar) to an extent that would require any additional parking space, unless that additional space is provided.

The record establishes that defendants cannot provide parking space on their own premises, and strongly suggests that they cannot do so within 300 feet of their building. Accordingly, while this writer would prefer to enjoin any expansion that would require any additional parking space only conditionally, i.e., unless parking requirements are met, the academic nature of such a condition does not justify delaying this appeal by forcing it to rehearing before a five-judge panel, La. Const, art. 5 § 8(B). The writer therefore concurs in the unconditional enjoining of such expansion.

Finally, defendants may not use their premises as a party hall for hire for up to 200 persons. Such a use appears to be either that of “meeting place,” first permissible in CBD-1 Central Business District, or of “amusement place,” first permissible in C — 1 General Commercial, each of which is more restrictive than the minimal hotel category of MS and the actual zoning of RM-3.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing, plaintiffs-appellees note that the opinion of this Court enjoined the defendants from operating a restaurant at 3811 St. Charles Avenue “except in rooms whose total area does not exceed the square footage of the area used for restaurant purposes prior to August 21, 1979”, and they suggest that the testimony in this proceeding did not establish with particularity the square footage of the restaurant at the “Columns Hotel” prior to August 21, 1979.

Although the record describes the area in which the restaurant was located, it is silent as to the actual dimensions of the kitchen and eating area that comprised the restaurant.

Accordingly, for this reason, we amend our earlier judgment to remand this case to the district court for the sole purpose of taking testimony to establish the square footage of the restaurant located in the “Columns Hotel” prior to August 21, 1979.

APPLICATION FOR REHEARING IS DENIED.

REDMANN, Chief Judge,

dissenting from refusal of rehearing.

I would grant rehearing to defendants. My original concurrence probably errs in its view that additional parking space would be required if the restaurant and bar floor space were expanded.

      . Jacques Creppel testified that the property had twenty-one (21) sleeping rooms and fourteen (14) baths. Even assuming that this is correct, the building does not meet the definition of a “hotel” as that term has been defined.


source: Caselaw Access Project

author: CURRAULT, Judge.

license: Public Domain

text:
    Robert F. PERRY v. HOTARD’S PLUMBING, and Their Workmen’s Compensation Carrier, the Travelers Insurance Company.
    No. 83-CA-289.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Rehearing Denied Sept. 16, 1983.
    Writ Denied Nov. 18,1983.

      Robert R. Faucheux, Jr., Reserve, for plaintiff-appellee.
    John Michael Parker, Baton Rouge, for defendant-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This is an appeal by defendants, Hotard’s Plumbing, Inc. and their workmen’s compensation carrier, The Travelers Insurance Company, from a judgment granting plaintiff, Robert F. Perry, permanent and total disability benefits.

Robert F. Perry, plaintiff, was employed by defendant, Hotard’s Plumbing, Inc., as an air conditioning repairman and installer from 1976 until 1980, with a rate of pay of $7.25 per hour. He is a 42 year old man with no special vocational skills or training other than on-the-job experience and who completed half a semester of the tenth grade. In February, 1980, plaintiff claimed to suffer an injury to his back while in the course and scope of his employment. After notifying his employer, he began medical treatment which has continued to date. Compensation was initially paid to plaintiff until July, 1980, at which time it was terminated. Upon refusal of defendants to continue benefits, suit was filed on July 30, 1980. The case came to trial on May 5, 1982, and in judgment rendered September 22, 1982, plaintiff was awarded compensation benefits in accordance with LSA-R.S. 23:1221(1) and (2) for temporary, total and/or permanent total disability at the rate of $148 per week plus all medical, surgical, medication and rehabilitation expenses in relation to the injury.

As a result of that judgment, defendants perfected this appeal.

Appellant presents the following assignment of errors for review:

I. that the trial judge erred in finding that plaintiff proved that he sustained an accident and injury within the course and scope of his employment; and

II. that the trial judge erred in finding that plaintiff was permanently and totally disabled.

In regard to the first error assigned by appellant, the law is clear that in a workmen’s compensation case the employee has the burden of proving that his injuries are the result of an accident which occurred in the course and scope of his employment. La.R.S. 23:1031. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Appellant argues that plaintiff did not bear his burden and prove, more probable than not, that his back problems resulted from or were aggravated by an accident which occurred while he was working. We disagree.

The disability of the employee will be presumed to have resulted from employment if, prior to the accident, the employee was in good health; but, subsequent to the accident, symptoms of disabling condition appear and continuously manifest themselves. However, the presumption is rebut-table by sufficient contrary evidence. Field v. Winn Dixie Louisiana, Inc., 427 So.2d 616 (La.App. 5th Cir.1983). In this regard, an employee’s testimony is sufficient to establish that an accident occurred within the course and scope of the employment if the employee’s testimony is corroborated by other credible evidence. Irvine v. Sentry Insurance Co., 415 So.2d 467 (La.App. 1st Cir.1982); Gurry v. Allied Metals, Inc., 379 So.2d 871 (La.App. 4th Cir.1980). Furthermore, the employee's own testimony is to be accepted as true “at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.” West v. Bayou Vista Manor, Inc., supra, at 1147.

Appellant complains that the testimony of appellee, Mr. Perry, regarding the date and manner of the injury was inconsistent and uncorroborated. The trial court ultimately determined that the injury occurred on February 11, 1980, after reviewing the employer’s first report of injury and listening to the testimony. A review of the record reveals that while appellee did offer several dates for the injury, the specific date was established by competent evidence. As appellant notes, in and of itself, these discrepancies in appellee’s testimony could be excused for any number of reasons. However, appellant urges that appel-lee’s testimony and statements as to the manner of the injury were also inconsistent, uncorroborated and contradictory.

The record reveals that appellee attributed his injury to one, or both, of two incidents that occurred on the date in question. The first incident involved a slip and fall while he was carrying an air conditioning unit to be installed in a customer’s house. The other incident occurred later in the day while crawling under the same house. As appellant notes, the record does reveal some variations in the description of how appellee was hurt. In testimony, he stated that while carrying the air conditioning unit with a helper he slipped and the unit fell on his knees. In deposition, he stated his helper slipped and the unit fell across his waist.

In describing the second incident, appel-lee stated in testimony that, while he was crawling under the house, he hit his back on a sewer stub. In deposition he claimed he struck his neck. Appellee’s helper and only witness to the events, Garland Powell, testified that while he did not recall the incident involving the air conditioning unit, he did recall appellee complaining that he hit his neck immediately after crawling out from under the house. Mr. Powell also stated that appellee had complained about his back some time during that day, but the record reflects his testimony in this regard was vague as to precisely when his complaints began. The record also reveals that appel-lee reported the injury to his employer and at that time, according to the report, attributed the injury to the slip and fall.

Appellee’s work history reveals that, pri- or to the date of the claimed injury, appel-lee was a reliable employee who rarely lost time from work. Subsequently, however, he sought medical treatment and was unable to return to work as was amply demonstrated by the medical evidence.

It is well established that the standard of review by the appellate courts on factual findings made by the trial court is limited to whether the fact finder was manifestly erroneous in its determination. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Field v. Winn Dixie Louisiana, Inc., supra. After considering all the evidence, it is our opinion that the trial court was not clearly wrong in finding that the appellee suffered an injury to his back while in the course and scope of his employment.

Appellant alleges, secondly, that appellee failed to prove that his injury constitutes a permanent and total disability within the meaning of the workmen’s compensation act. In order to obtain that status under the act, the plaintiff must prove that he is unemployable, whether or not in the same or similar occupation. LSA-R.S. 23:1221 (et seq.) Further, “A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability.” Wilson v. Ebasco Services, Inc., 393 So.2d 1248, 1251 (La.1981). The question of physical inability to work and inability to return to work due to substantial pain is one of fact and will not be disturbed unless the trial court’s findings are clearly wrong. Field, supra.

The evidence herein indicates that appellant suffers from a continuing deteriorating back problem which may or may not be alleviated by surgery in the future.

The incident in question occurred in February, 1980. From that date to the present, the medical evidence reveals that appellee’s complaints of back and neck pain, along with a loss of sensation in his right leg, have remained constant. Although appel-lee’s condition appeared to stabilize at certain times, by date of trial, it was continuing to deteriorate. The last medical opinion available before trial indicated that he was totally disabled, and that a CAT scan was recommended to determine whether a suspected herniated disc was present, and whether or not surgery was warranted.

Four physicians have been involved in appellee’s case: Dr. K.E. Matthews, a general surgeon who saw appellee three times in February, 1980; Dr. Raul G. Reyes, a surgeon who treated appellee from March, 1980 to September 1980; Dr. Ray Haddad, an orthopedic surgeon who examined appel-lee once in July, 1980; and Dr. Kenneth E. Vogel, a neurosurgeon who saw appellee July, 1980, May, 1981, and April, 1982. All four physicians found evidence of scoliosis, but more importantly noted that flexion and extension tests as well as other examinations revealed impaired sensation of the right leg as well as below normal movement ability. The degree of the limitation of movement varied only slightly from the date Dr. Matthews first examined appellee in February, 1980, to the last examination by Dr. Vogel in April, 1982. X-rays taken in February, 1980 reflected a narrowing of the space between the L5 and S-l. Although appellee was originally diagnosed as having a lumbosacral sprain, a herniated disc was not ruled out. During the entire two-year period, appellee was treated conservatively; however, as his condition failed to improve, the probability of a disc involvement became likely.

Dr. Ray Haddad, the expert upon whom appellant relies, indicated that X-rays revealed a marked narrowing of the lumbo-sacral joint with lateral osteophytis and facet involvement. While Dr. Haddad stated that he believed that Mr. Perry’s problems were the result of degenerative osteo-ar-thritis which had been present prior to the accident; he also stated an abnormal joint would not recover from trauma as easily as a normal one. Furthermore, even he stated in his report that a surgical fusion of the lumbosacral joint would be indicated if the pain persisted.

The medical testimony clearly supports a finding of a substantial disability particularly in light of the testimony of Susan L. Smith, appellee’s expert in occupational therapy upon whose testimony the trial judge placed great weight. Ms. Smith studied appellee in a functional performance situation wherein she actually viewed appellee perform various functions and noted his reactions as he did so. Her conclusion, based on her observations and his history, was that appellee was totally disabled and unable to work in any gainful employment due to substantial pain. We note that Mr. Melvin Meyers, a vocational rehabilitation expert, concluded otherwise. However, the trial judge is granted great discretion in this area. We do not find any reason to disagree that the greater weight was properly placed on Ms. Smith’s testimony as opposed to Mr. Meyers.

Appellant also directs this court to an automobile accident in which appellee was involved and which occurred in April, 1980, as a possible cause of appellant’s disability. However, just prior to the automobile accident, Dr. Reyes found no improvement in appellee’s condition and advised him not to return to work. The trial judge apparently believed, and we agree, that the evidence was insufficient to find that the accident was an intervening cause.

Finally, appellant refers the court to ap-pellee’s work experiences during the period subsequent to the injury and prior to trial as evidence of his ability to work gainfully. In particular, appellant notes that in an application for employment with Carrollton Central Systems, dated April 21, 1981, plaintiff stated that he had been previously injured, but advised that he was “alright now.” ■

Similarly, Mr. Alvin Landers, president of A. & R. Service Company, where plaintiff was employed from March to April, 1981, one month prior to the job with Carrollton, testified that the work plaintiff was doing for him as an air conditioning installer and repairman included lifting 50 to 75 pounds and considerable stooping and bending. However, the record reveals that Mr. Wise of Carrollton Refrigeration Systems also testified that appellee ultimately left his employ in April, 1981, because of chronic absenteeism, which was attributed by ap-pellee to the painful nature of the work and which was supported by Dr. Vogel’s testimony. In addition, the evidence is uncon-tradicted that in the month appellee worked for A. & R. Service Company, appellee was assisted by a helper who performed all the major lifting.

After our review of this issue, in light of all the evidence, we do not find that the trial court’s determination of total and permanent disability is manifestly erroneous. In conclusion, considering the record herein and the law, we hold that the trial court was not clearly wrong in finding that appel-lee suffered an employment related injury, nor did the trial court commit manifest error in concluding appellee is permanently and totally disabled within the meaning of the Louisiana Compensation Act. Therefore, the judgment of the trial court is hereby affirmed. All costs of this appeal are to be paid by appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    DASPIT BROS. MARINE DIVERS, INC. v. LIONEL J. FAVRET CONSTRUCTION CO. STAR MANUFACTURING CO. OF OKLAHOMA v. LIONEL J. FAVRET CONSTRUCTION CO.
    Nos. 5-155, 5-156.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 16, 1983.

      Clarence F. Favret, Jr., and Gregory J. Favret, New Orleans, for Lionel J. Favret Construction Co., Inc., Defendant-Appellant.
    Evangeline M. Vavrick, New Orleans, for Daspit Bros. Marine Divers, Inc., Plaintiff/Defendant in Reconvention/Appellant.
    William R. Mullins, Baton Rouge, for Star Manufacturing Co., Plaintiff-Appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment in a construction contract suit, for defects in the construction of a prefabricated steel building and slab intended for use as a heavy industrial machine shop and office.

Daspit Brothers Marine Divers, Inc. (Das-pit) filed suit against Lionel J. Favret Construction Co., Inc. (Favret) and later amended to add as defendant Star Manufacturing Company of Oklahoma (Star), manufacturer of the steel building. Favret reconvened against Daspit for moneys due on the contract and third-partied Star for indemnification in the event Favret was found liable. Star sued Favret for moneys due on an open account for materials furnished to the job. The two cases were consolidated for trial.

The court found in favor of Daspit and against Favret in the amount of $24,131 on the principal demand. On the reconven-tional demand, the court found in favor of Favret and against Daspit in the amount of $24,302. On the third party demand the court found in favor of Favret and against Star in the amount of $5,425. On Star’s demand against Favret, the court found in favor of Star, awarding $70,070.17, subject to a $25,000 credit plus attorney’s fees of $2500.

In his Reasons for Judgment the trial judge adopted the findings of the court-appointed expert, Larry Case, AIA, as to the facts. He stated he based the valuation of items of dispute, listed as # 1 through # 37, upon reports by Arthur L. Dahlman, a construction estimator hired by Daspit and by Joseph Fulco, an architect, also hired by Daspit, and upon testimony presented at trial. Both Favret and Daspit have appealed. Favret has paid Star.

ERRORS

The plaintiff, Daspit, specified seven errors: valuation of items to be corrected; finding the slab to be adequate; disregarding the problem with the skylight configuration; failing to consider all the contract documents as the total contract; failing to allow damages for substituting overhead sliding doors for rolled doors; failing to allow testimony or to award damages for business losses and finding substantial completion resulting in an award to Favret of the balance due on the contract.

Favret agrees with the court’s findings of fact, but appeals the assigned valuation of corrections and the denial of its claim for delay damages and expenses and for additional erection costs.

FACTS

To help clarify the dispute between Das-pit, Favret, and Star, a more detailed recital of facts is necessary.

Favret is a franchise dealer for Star. A Favret sales representative, Louis Negrotto, called on Ronald Daspit at his place of business to determine his requirements for a prefabricated steel building. Daspit is in the business of making products for submarine pipeline repair and equipment incidental to marine diving. Heavy machines, the largest one weighing 47,000 pounds, are used to manufacture these products. The new building was planned with a view to expansion and was to include areas for offices, a warehouse, and a plant in which an overhead crane could be installed.

Star designed a building from prefabricated components and furnished to Favret an “engineering package” that gave information on the weight the building imposes on the foundation. This Favret forwarded to Sam Z. Scandaliato, a civil engineer, for design of a slab foundation. Favret informed him it was to be a heavy industrial facility. Scandaliato had soil borings made to classify the soil under the site and his assistant made an on-site inspection of Das-pit’s old facility to bring back information necessary for the design. An agreement was signed by Ronald Daspit and Lionel Favret, Jr. in April, 1977 for purchase and installation of the building at a cost of $95,052. Construction began in July. Fav-ret had two crews, which performed separate functions. An erection crew under the direction of the erection superintendent put up the prefabricated steel frame. The general contract superintendent and his crew handled the concrete, carpentry, and other phases of the building. Additional subcontractors were called in for masonry, plumbing, heating and air conditioning, and electrical work.

In addition to the contract, three sets of drawings were made and were introduced into evidence at trial: S-6, erection drawings furnished by Star and used by the erection foreman on the job; S-4, a three-page set of drawings made by Scandaliato and submitted for the building permit; and D-l, a 2-page set of construction drawings of which copies allegedly were given by Favret to Ronald Daspit and to Richard Owens, the contract superintendent. After the record was received by this court, it was discovered that S-6 and D-l were missing from the box of exhibits. The parties have not as yet been able to provide the court with copies.

Daspit paid an initial deposit of $9,500 and then made three payments amounting to $70,259.71. It refused to make further payments, leaving a balance of $24,302 due on the contract, after which Favret stopped work on the project. Daspit filed this suit on September 16, 1978. At time of trial, Ronald Daspit had done some patching of the roof himself, had moved small machinery into the building and had occupied it several weeks. The heavier machinery operation remained in the old building.

Two of the complaints viewed by the plaintiff as most serious, the installation of overhead sliding doors instead of roll-up doors, and the placement of skylights, stem from a conflict between the written agreement (herein referred to as “contract”) and the Scandaliato plans. Plaintiff asserts that the overhead doors would make it difficult for him to install and use an overhead crane, as the doors lower the available ceiling height. The Scandaliato plans specified roll-up doors, while the contract provided sliding doors. According to plaintiffs brief the drawings given to the construction foreman, now missing, specified roll-up doors. As to the skylights, the plaintiff complains that they are not placed according to his specifications. The present configuration provides insufficient natural light for machinery work and will increase the plaintiffs energy expense. Both of these issues, as well as some others, depend upon what documents constituted the building contract between the parties.

CONTRACT

This case falls into the category of building contracts and the responsibility of a contractor is set out by Louisiana Civil Code articles 2762 and 2769, which read as follows:

“Article 2762.
. If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.
“Article 2769.
If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

The court in Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir. 1974) interpreted these articles as follows, at 346:

“... It is implicit in every building contract that the work of the builder be performed in a good, workmanlike manner, free from defects either in materials or workmanship. An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects .... ”

The contract signed by Ronald Daspit and Lionel Favret, Jr. on April 27, 1977 was an eight-page proposal, outlining the services to be provided and described the building to be ordered from Star. The completion date, weather permitting, was July 31,1977. No plans or specifications were attached, but reference was made to plans, as follows. In the section entitled “Scope of Work,” Favret includes in the price “such drawings as are required for construction purposes.” In “Concrete,” the contract refers to “the anchor bolt setting plan.” Such a diagram appears on page 1 of S-4, the Scandaliato drawings. In “Carpentry,” appears the statement, “Interior side of steel building walls in finished spaces and interior partitions shown on the plans shall be 8' high. ... ” The Scandaliato drawings show interior partitions in the office area on page 2. Under “Allowances,” the contract states, “When exact requirements are known and plans and specifications are issued the contractor shall take bids on the separate phases of the work to determine the exact price of each item.” Under “Metal Building and Accessories,” the contract states, “Star Manufacturing Company shall have on file complete design calculations of all structural components on your building and shall furnish same upon request.” In addition, the following statement appears: “This building and all accessories and other work described herein will be installed according to Star Standard Erection Plans and Specifications .... ” Above the dates and signatures on the final page appears, “This proposal becomes a contract when accepted by Mr. Ronald Daspit and approved by Lionel J. Favret Construction Company, Inc.”

Favret and the court viewed the signed proposal alone as the building contract. The court said during trial that all plans and drawings were made after the proposal was executed and were not part of the binding agreement. Larry Case, the court-appointed expert referred in his report of March 25, 1980 to the proposal and to the “shop drawings,” D-l.

Daspit’s position is that all three sets of drawings and the specifications, along with the proposal, make up the building contract and must be interpreted as a whole. It further asserts that any inconsistencies or ambiguities must be construed against Fav-ret, preparer of the document. As authority for incorporation of other documents by reference the plaintiff cites Action Finance Corp. v. Nichols, 180 So.2d 81 (La.App. 2d Cir.1965), Harper v. Home Indemnity Company, 140 So.2d 653 (La.App. 2d Cir.1962), and Walker v. Gravier, 131 So.2d 553 (La. App. 3rd Cir.1961). In those three cases the other documents deemed incorporated were referred to with specificity in the written agreement and were in existence at the time the agreement was written.

In the case of Galeon, Incorporated v. Young Companies, Inc., 322 So.2d 883 (La. App. 1st Cir.1975) the court found that specifications referred to in a written contract did not become a part of the contract. The specifications had not been provided to the plaintiff subcontractor nor signed by the parties prior to the litigation.

In the case before us Ronald Daspit reported receiving a set of plans prior to signing the agreement that were essentially the same as the Scandaliato drawings and another set later which he ignored. He could not identify which set the Favret construction foreman used. Lionel Favret, Jr. testified that the Scandaliato drawings were made only to obtain the building permit and he did not give Mr. Daspit a set of construction drawings as part of the contract.

As noted earlier the contract and Scan-daliato drawings are not in agreement, and Daspit’s attorney reports that the three sets of drawings do not agree with each other. With two of the sets unavailable, i.e. the construction drawings (D-l) and the Star erection drawings (S-6), we are unable to make a factual determination of variances among the plans.

The evidence as outlined above does not show that there was a definite agreement between the parties as to the adoption of any particular set of drawings or specifications to alter the written contract. Accordingly, we are compelled to adopt, as did the trial judge, the written contract as the basic agreement controlling the obligations of each party, even though that agreement itself refers to other documents. This, of course, leads to ambiguities and incomplete specifications in some instances, but it is the only proven agreement upon which we can base a judgment.

Daspit asks the court to resolve the ambiguities in its favor and against the preparer of the contract. In Maxwell v. Bernard, 343 So.2d 431 (La.App. 3rd Cir.1977), cited by the plaintiff, the court quoted Louisiana Civil Code article 1958, which provides:

“But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

The court goes on to say, at 434:

“Our Courts have long held that any obscure provision present in a written contract must be construed against the party preparing the agreement. See Hebert v. Briley, 295 So.2d 607 (La.App. 3rd Cir.1974), writ refused, 300 So.2d 181 (La. 1974); Succession of Cormier, 80 So.2d 571 (La.App. 1st Cir.1955), and Ernest A. Carrere’s Sons v. Rumore, 52 So.2d 57 (LaApp.Orl.1951)....”

Roll-up or Overhead Doors

Daspit asks us to resolve the issue of type of doors required at the rear of the building — 2 overhead doors as opposed to 2 roll-up doors — based upon the ambiguities and differences in the various documents.

Sam Scandaliato testified that his drawings, which show the preferred rollup doors were based on information provided by Favret. “... [T]he. contractor tells us where the opening is and the type of doors that he wants.” He was not given a copy of the proposal. His drawings did not, to the best of his knowledge, deviate from the contractor’s verbal instructions. Lionel Favret, Jr. testified that he had no contact with Ronald Daspit in planning the building but that some “verbal” changes were made on the job by the superintendent, Richard Owens, and Mr. Daspit. Mr. Favret also testified that Favret’s sales representative, Louis Negrotto, had negotiatéd with Mr. Daspit. Neither Owens nor Negrotto was called to testify.

As opposed to this, the contract specifically describes 2 sectional overhead doors and that is what was ordered by Favret from Star. Although overhead doors are less useful to Daspit than rollup doors which would cause less interference with a proposed crane operation, we cannot conclude that the contract was changed in this respect and find no ambiguity.

DEFECTS AND INCOMPLETE ITEMS

In its Reasons for Judgment the court stated that it adopted Case’s findings of fact but based its valuation on the estimates of Dahlman and Fulco and evidence adduced at trial. We now discuss item by item the defects that remain in dispute. Priming of Steel. The parties agree that Star is responsible for repriming the steel, although this is the only defect for which Star is responsible. The court granted an indemnification award of $5,425, as per a bid by Richard Straub, which Daspit feels is too low. The Case report recommended wire brushing and cleaning rather than sand blasting or shot blasting prior to painting. Dahlman testified that the process was time consuming and the number of man-hours difficult to guess. He estimated a cost of $9,034. As a firm bid for correcting the defect was submitted by the defendant, we affirm the judgment awarding indemnification of $5,425.

Slab Foundation. As to the sufficiency of the slab, the court found that it was adequate to sustain the loads to be placed on it, and made no award. Daspit asked for $14,-983 to correct the slab. Joseph Fulco, Larry Case, and John L. Pfeffer, the plaintiff’s engineer, all found cracks in the slab. Both Case and Pfeffer recommended building additional concrete foundations for the machines. Sam Scandaliato, designer of the foundation, reported that he had taken into consideration Daspit’s requirements, had had soil borings made before designing it, and in March, 1980 found the slab to be functioning as anticipated. He explained the cracks as the normal result in a large slab of temperature, expansion, and contraction. He believed that if the weight of the machines was distributed by placing them upon mats, as Daspit told him he planned to do, the slab was adequate to bear the weight of a machine weighing as much as 46,000 pounds. As we find that the slab foundation is adequate for its intended purpose if the machines are placed on mats as planned, we affirm that portion of the judgment denying plaintiff’s claim.

As to the surface defects, Case found the slab uneven and low in spots over the entire building, causing water to come into one area and recommended leveling and smoothing. Favret accepts responsibility but opposes the amount of the award, $1,621, which included replacement of the existing bar plate. We affirm the award of $1,621.

Roof. The court awarded a total of $2,943 for items related to roof repair. All the experts found that the roof leaked. Case found holes in the roof panels where screws were missing, deteriorated insulation, and leaking around the plumbing stack and the skylights. He recommended repairing the roof. Dahlman felt the nail holes were not the only reason and suspected the end laps were too short and improperly caulked. It would be impossible to find and patch the leaks because the spots were hidden by insulation, and he recommended replacing the roof. Pfeffer concurred in this opinion and also suspected an inlap problem. He thought the roof had not been secured to the frame properly and found the insulation to be useless because the vinyl back was torn off in places, the insulation material was saturated and sagging, and it was all mildewed.

Fulco suggested trying to repair first but said that he had no way of knowing the condition of the underside of the roof. If the problem was improper lapping of panels, then the roof would have to come off. He felt that repairing was not guaranteed to stop the leaks. Dahlman estimated a cost of $30,524 to remove and replace the entire roof, while Favret estimated $500 as the cost of repairing the roof.

We find the award of $2,943 for repairing the roof to be inadequate. There is no doubt that problems with the roof have continued despite some corrections having been made by the plaintiff. The testimony indicates that the extent of damage from rust and the source of the leaks can only be ascertained by removing sections of the roof. We cannot say with preciseness that the roof should not be replaced, but conclude that we must allow for more costly repairs than can be foreseen through surface inspection. Further, the roof’s longevity, based on its present damaged condition, is more probably than not far less than the owner should reasonably expect.

In increasing the award, we are also taking into consideration the problem of the placement of skylights causing inadequate natural lighting. That item was not included in Case’s report or in the judgment. Case testified that the locations on the Scandaliato drawings differ from those shown on the Star drawings. Ronald Das-pit said that he gave Negrotto a hand drawing showing the placement he desired. We note that the contract called for twenty-four skylights. The contract does not show any placement and to this extent it is subject to the ambiguity rule advanced by Das-pit. However, here again we can rely on the contract specifications to show that the placement must be incorrect. Lionel Fav-ret, Jr. acknowledged that the purchase order showed that only twenty skylights were ordered. The Scandaliato drawing called for only eighteen. Only 18 were installed. As the trial judge found that the proposal alone constituted the building contract, we hold that he cannot disregard the requirement of 24 skylights and the plaintiff’s complaint of inadequate light. Daspit is entitled to the number of skylights specified in the proposal and it follows that the placement of 24 panels must differ from placement of 18.

Accordingly we amend that portion of the judgment awarding $2,943 for corrections to the roof and increase the amount to $12,943 for repairing the roof and providing additional skylights.

Sliding Door. The court awarded a total of $784 to correct faulty installation of the sliding door and replacement of the sliding door jamb post.

The contract provided for one 20 feet by 14 feet 8 inches “single STAR steel sliding door.” The Scandaliato drawings indicated a 10 feet by 16 feet door. We note that the Star purchase order specified “One 12 X 14.8 S.S. Door.”

The Case report stated that the bottom track of the door was missing, the jamb post was damaged and that the sidewall girts were unattached to the door jamb post on one side. He recommended installing a proper door track and guide, replacement of the post, and reinstallation of the wall girt section to the door post in accordance with the “erection drawings.”

Pfeffer found the sliding door to be inadequate for wind and jerry-rigged. Dahl-man testified that the sliding door was “flimsily built,” not a single door, did not close properly and needed to be rebuilt completely. Ronald Daspit pointed out that the door was made of two doors bolted together, could be pushed in easily and could not withstand hurricane winds. Lionel Favret, Jr. said the problem could be rectified by a guide angle on the bottom, a wood track on the top and completing the door fastening. Daspit asks for $3,640, Dahlman’s March 5, 1980 estimate for rebuilding the door. We amend and award $3,640 for rebuilding the door to conform with the provisions of the contract.

Entrance and Sidelights

The court awarded $350 for installation of a secondary support for the canopy at the entrance and $1,000 to install 18 inch sidelights at the door. The court noted that the contract excluded glass and glazing but did include the sidelights and one glass door.

The Case report noted that the canopy was supported only by the sheet metal wall panels and that the drawings specified an additional post. Nine-inch sidelights had been installed instead of eighteen-inch sidelights.

We affirm the award of $1,350 for correction of the entrance and sidelights. Miscellaneous items for which Favret accepts responsibility

The court awarded a total of $4,984 for correction of eight relatively minor items. Favret accepts responsibility but complains the awards are too high and insists that these items and the major ones discussed above all can be completed or corrected for $6,020, exclusive of roof repairs.

As the testimony bears out the trial judge’s finding that the Favret in globo estimate falls far short of the total amount required for corrections, we affirm his award of $4,984 for the eight lesser items. Items for which Favret denies responsibility

The court awarded $3,334 for replacing damaged and improperly hung paneling in the office areas, $1,910 for roughins of two water coolers, and $500 for checking all drain lines. As the evidence opposing the awards does not show the court’s finding Favret responsible to be clearly wrong, we affirm the judgment as rendered.

SUBSTANTIAL COMPLETION

Even though work on a building is shown to be incomplete or defective, the contractor may yet recover the contract price less the cost of correction or completion when he has substantially performed the contract. If he has not, he is limited to quantum meruit.

The law pertaining to substantial performance is well summarized by the court in Ruby Brown Builders v. St. Bernard Linen, 428 So.2d 534 (La.App. 4th Cir. 1983) at 535:

“When a contractor has ‘substantially performed’ a building contract, he is entitled to recover the contract price, even though defects or omissions are present. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975), writ denied 319 So.2d 440 (La. 1975). ‘Substantial performance’ means that, despite the deficiencies, the construction is fit for the purpose intended. Pete’s Plumbing & Heating, Inc. v. Geissert, 413 So.2d 554 (La.App. 4th Cir.1982); Neel v. O’Quinn, supra. Factors bearing on this factual determination include: the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Airco Refrigeration Service, Inc. v. Fink, Supra; Pete’s Plumbing & Heating, Inc. v. Geissert, supra; Design & Corrosion Eng. v. Piggly Wiggly, 408 So.2d 292 (La.App. 2d Cir.1981).”

In the case at hand we are dealing primarily with defective, rather than incomplete workmanship, as the items which were unfinished are minor ones.

The court in Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3rd Cir.1980) dealt with the issue of substantial completion where a fireplace was so poorly built that it had to be demolished. It held that the contractor could not recover on the contract because the homeowners had received no benefit. In Scott Fence & Insulation Company v. Boudro, 252 So.2d 458 (La.App. 4th Cir.1971), there was not substantial completion where the contractor had put up a fence but had not adhered to the location and type of materials required by the contract.

Daspit’s position is that the building was unfit for its purpose because of leaking roof and other deficiencies and the contractor should not recover under the contract.

Favret insists the building was substantially complete, that the miscellaneous items complained of were “punch list” items that Daspit would not allow him to complete, the roof was repairable, and that there were no deviations from the agreement.

Although the plaintiff’s experts testified that they felt the building was not complete or usable for its purpose with the leaking roof, the plaintiff has in fact begun to use the building. Mr. Daspit testified that he had had some corrective work performed on the roof and at time of trial had been using the building for several months as a storage area. He had occupied the office and shop for a few weeks, but had retained the large pieces of machinery at the old plant.

Accordingly, we affirm the trial court’s finding of substantial completion.

SPECIAL DAMAGES

Daspit

The plaintiff complains that the court was in error in failing to admit testimony on loss of business due to Favret’s delay in starting and completing construction of the building. The court refused to admit the testimony on the ground that damages due to loss of business were not listed as a contested issue of fact in the pretrial order, nor were witnesses and documents relative to the issue. The court allowed Daspit to introduce letters from potential international customers on proffer.

The purpose of pre-trial proceedings, as provided by La.C.C.P. article 1551, is to limit the trial to contested issues. The court is allowed to:

“... render an order (which, of course, may be prepared by the parties) that, among other things, ‘limits the issues for trial.’ The article further provides that the order, unless modified to prevent manifest injustice, controls the subsequent course of the action." Navarro v. Bommarito, 367 So.2d 74 (La.App. 4th Cir.1979), at 76.

Daspit asserts that the issue appears twice as a contested issue of fact in the order: in the Star suit a “potential liability of Favret as a result of the Daspit complaint and litigation,” and in the Daspit suit, as “amount of damages both special and general.”

After reviewing the proffered documents, we believe that live witnesses and additional documents would have been required to prove Daspit’s claim of lost business. As Daspit failed to list them in the pre-trial order, we find that the trial judge was correct in refusing to admit testimony. Favret

Favret assigns as error the court’s failure to award it an additional $7,536 for delay damages and additional erection costs. It blames the two month delay upon Das-pit’s failure to prepare the site for construction and obtain the building permit. The additional costs of erection are alleged to be due to Daspit’s failure to provide access. No delay penalty against either party was provided in the contract. The testimony of Mr. Favret and of Mr. Daspit indicated that Favret had failed to check with its customer regarding the permit and that its salesman, Lewis Negrotto, had told Mr. Daspit he would obtain it. Daspit had agreed after the contract was signed to have Favret prepare the site at Daspit’s cost. Mr. Fav-ret testified without any documentary evidence, although he testified as to his method of calculating the additional overhead costs.

We find that the trial court was correct in disallowing the additional claim of Fav-ret for delay damages and increased erection costs.

Accordingly, we amend the judgment of the trial court by increasing the award to the plaintiff Daspit Bros. Marine Divers, Inc. to the sum of $37,158, and as amended, we affirm the judgment appealed. Costs of this appeal are cast against Lionel J. Favret Construction Co.

AMENDED AND AFFIRMED.


author: BOWES, Judge.

text:
    Richard S. BRAUN v. WEST JEFFERSON GENERAL HOSPITAL and J.A. Jones Construction Company.
    No. 83-CA-321.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 16, 1983.

      Kurt S. Blankenship, Reuter & Reuter, New Orleans, for intervenor/appellant.
    William L. Dehner, Gretna, for plaintiff/appellant.
    Robert E. Couhig, Jr., New Orleans, and E. Peter Dewey, Metairie, for defendant/appellee.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiff appeals a judgment of the trial court dismissing at his costs his suit for personal injury damages against defendant, J.A. Jones Construction Company. We affirm the judgment of the district court.

This litigation arises out of an accident which allegedly occurred on April 25, 1980. At that time, Richard C. Braun was employed as a security guard by Vinson Guard Service (hereinafter Vinson) and was stationed at West Jefferson General Hospital. Plaintiff’s duties as a security guard required him to patrol throughout the hospital and its outlying buildings. At approximately 9:30 p.m. on the evening of April 25th, Braun exited a single door on the northern side of the hospital’s old boiler room building and proceeded toward the nursery building, located about 125 feet to the north. Braun claims that he had only gone five to ten feet when he tripped over what he described as a ¼ to ½ inch in diameter steel cable, stumbled forward a few feet and then flipped over a four to six-foot high guard rail. Plaintiff claims that, as a result of the alleged accident, he sustained a back injury requiring surgical intervention.

At the time of plaintiff-appellant’s alleged fall, defendant-appellee, J.A. Jones Construction Company (hereinafter referred to simply as Jones), was engaged in the construction of an addition to the boiler room on its eastern side and an addition to the existing hospital. The new addition to the hospital was located at the western side of the boiler room building. Also at that time, Bartley, Inc. was constructing a parking garage for the hospital. This garage construction was located immediately north of Jones’ hospital addition site.

As a result of Braun’s alleged fall and injury, he filed suit against West Jefferson General Hospital (hereinafter West Jefferson) and Jones and later supplemented his petition to add Bartley, Inc.

Braun received compensation benefits from Vinson, who intervened in the suit for the compensation benefits paid. Because of the payment of compensation benefits, West Jefferson filed for Summary Judgment, alleging it was the statutory employer of Braun. The trial judge properly dismissed West Jefferson as a party defendant and plaintiff chose not to appeal that judgment.

At the trial on the merits, after presentation of the plaintiff’s case, defendant, Bart-ley, Inc., moved for a directed verdict on the basis that it could not be responsible for the area where the accident occurred. That motion was granted, dismissing Bartley, Inc. from plaintiffs lawsuit, and plaintiff has chosen not to appeal that judgment.

According to the plaintiff: “The sole issue presented to this Honorable Court on appeal is whether or not the plaintiff carried his burden of proof in an action pursuant to the provisions of LSA Civil Code Articles 2315 and 2316 as established by the jurisprudence of this State.”

The Supreme Court of our state, in interpreting these articles, made the following statements:

Under these articles, the elements of a cause of action are fault, causation and damage. The existence of a legal duty coupled with a breach of that duty are prerequisites to any determination of fault. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981); Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977). A breach of a legal duty that causes damage to another makes the offender liable under the above articles.

Seals v. Morris, 410 So.2d 715 (La.1982)

In his well-written reasons for judgment, the learned trial judge found that plaintiff did not bear his burden of proving by a preponderance of the evidence the necessary elements of his alleged cause of action against Jones and that he had serious questions concerning plaintiffs credibility. From the record before us, we cannot say that the trial judge was in error in these findings.

Mr. Braun testified that he tripped over a cable. However, Jule O’Neil, who was under his supervision at the time, testified that, on the same night plaintiff claims he was injured, after he had left, she followed the route that the plaintiff took on the night of the alleged accident and that she saw no cable in the route from the boiler room to the nursery. Ms. O’Neil further testified that, even though she had not seen the alleged accident, plaintiff, on two separate occasions, asked her to be a witness to his “accident.”

Additionally, Bryan Armstrong,’ who was the project manager for Jones at the time in question, testified that neither Jones nor any of its sub-contractors used any steel cable at the West Jefferson construction site. He further testified that the distance to the nearest “guard rail” from the north door of the boiler room was approximately thirty to thirty-five, feet (in contrast to plaintiff’s testimony that the fence or rail was only about 15 feet away).

Testimony at trial established that the area where the alleged accident occurred was not under the control of Jones, but rather the area in question was accessible to all companies working at West Jefferson, to the hospital itself, and even to the general public. Robert H. Bartley, who was employed by Bartley, Inc. at the time of the incident, testified that, in construction of the parking garage, his employer used a construction process involving post-tension steel cable in the place of the usual reinforcing rigid steel bars. Thus the testimony concerning the use of steel cable and control of the area of the accident not only fails to support plaintiff’s allegations, but appears to exonerate J.A. Jones Construction Company.

Appellate review is limited to a re-examination of the facts introduced in the trial court and a review of the law applied by the trial judge. In the absence of manifest error committed by the trial court in its evaluations and conclusions, that court’s findings should not be disturbed. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no manifest error in the case before us and, accordingly:

The judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . LSA Civil Code Article 2315 reads in pertinent part:
      “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it...”

      . LSA Civil Code Article 2316 reads:
      “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”


author: GRISBAUM, Judge.

text:
    STATE of Louisiana In the Interest of Angelque Rebecca MARCHADIE.
    No. 83-CA-308.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 16, 1983.
    Writ Denied Nov. 18,1983.
    Arthur Kingsmill, William C. Credo, III, Gretna, for plaintiff-appellee.

      Theresa A. Beckler, Metairie, for defendant-appellant.
    Before CHEHARDY, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an abandonment action initiated by the State of Louisiana pursuant to La. R.S. 9:403. After a two-day trial, the Juvenile Court of the Parish of Jefferson rendered a judgment declaring James H. Mar-chadie to have abandoned his child, Ang-elque Rebecca Marchadie.

The primary issue is whether the evidence clearly and convincingly establishes that the child’s father “failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.” La. R.S. 9:403 A(l)(b). We find it does not, and we reverse.

FACTS

The uncontested facts are as follows: James H. Marchadie and Terri Ann Aucoin Munster are the natural parents of Ang-elque Rebecca Marchadie. Terri and James physically separated in September 1979, and James moved to Texas thereafter. While in Texas, James lived with a friend and attempted professional wrestling but was unsuccessful. He returned to Jefferson Parish in November 1979. In November 1979, Terri obtained a judicial separation in which she was given custody of their daughter; however, the separation decree was silent as to child support and visitation. From November 1979 to approximately February 1980, James lived with his brother in Morgan City, Louisiana. During this time he was unemployed. When he returned to the New Orleans area, he opened an air conditioning/refrigeration business, Care Enterprises, which eventually failed. In May 1980, James filed a Rule for Visitation, and on June 12, 1980, a consent judgment was entered which required James to pay $35 a week child support and allowed him a weekly visit with the child on Sundays. From October 3, 1980 to December 19, 1980, James worked for Keen Marine Service and earned $1975 (gross). James and Terri were divorced in November 1980. Since the divorce, Terri remarried, and Angelque remained in her custody. Also, in December 1980 James was incarcerated. Elvin Munster, Terri’s new husband, instituted adoption proceedings for Angelque in June 1981. In April 1982, this abandonment action was instituted upon an affidavit of the Assistant District Attorney for the Juvenile Court of Jefferson Parish.

The facts concerning James’ conduct toward his child following the breakup of the marriage and his incarceration are in dispute. At the abandonment hearing, Terri testified James had no relationship with the child after their physical separation in September 1979. Other than $200 she took on her own initiative from a $500 loan his step-father gave her to forward to James, Terri has never received child support from September 1979 until the present. She did concede James never “quarreled over” her keeping the $200. She claims James “attempted” to kidnap their child in November 1979. Admitting he requested to see his daughter prior to the filing of his Rule for Visitation, she testified she refused his requests and made no arrangements for James to talk with his child. However, after the visitation order, she claims she never refused James visitation, but he never visited his child. Moreover, after his incarceration in December 1980, she testified James placed numerous collect calls for which she never accepted charges. According to Terri, his calls came, however, only after the adoption proceedings were instituted in June 1981. She did concede James had sent his daughter cards, letters, and gifts but claimed these also came only after the adoption proceedings had been instituted. She also admitted she never gave these gifts or cards to the child.

Terri’s account of James’ conduct is basically corroborated by her husband, Elvin Munster, and her mother, Gloria Sumlin. Ms. Sumlin, however, conceded that in May or June 1980, James inquired as to Ang-elque’s clothing size and asked for her assistance in selecting clothing for his daughter but never followed through on his request.

James, on the other hand, claims prior to his incarceration he was struggling financially. He described numerous debts and attempts to find a job in the area of his training — refrigeration/air conditioning— from September 1979, the date of their separation, to February 1980. He claims he made no profits in his new business started in March 1980 and was finally forced to close it. With the exception of the $200 out of his step-father’s $500 loan to him, he admits during the time he was working he sent no money for child support. He claims he told his estranged wife to take what she needed out of the $500 sent for him. After his incarceration, he sent his child a $35 wallet and a Bible as presents which were received but never given to the child. He stated he was continuously attempted to make contacts with the child — to talk to her or communicate through letters — but his ex-wife has never allowed this.

Donna Keen, wife of his most recent employer, Lamar Keen, described James as expressing concern for his daughter in the months just prior to his arrest. Since her daughter was also in the same dance class as James’ daughter, Ms. Keen became somewhat of a liaison between James and his daughter after his incarceration. She related James’ ex-wife did not want her to speak about James to the child. She explained since his incarceration, James writes her family regularly always inquiring about his daughter.

The trial judge analyzed the facts from the perspective of two periods of time. The first period is from September 1979 when Terri and James first separated until December 1980 when James was incarcerated. The second period is from the date of his incarceration in December 1980 until the date of the filing of this abandonment action. The trial court considered the crucial period to be evaluated was the first period when James was capable of supporting his child. The trial judge states,

I find, from all the evidence that I have heard in this case, and all the documents that have been presented herein that there is no reasonable doubt in my mind but that all of the actions or lack thereof or lack of actions that were taken by Mr. Marchadie, the father of the child between September 1979 and December 1980 indicate to me that he has failed to provide for the care and support of his child and this indicates to me an intention to permanently avoid all parental responsibility. (Emphasis added)

We find this conclusion of fact clearly wrong.

APPLICABLE LAW

Louisiana recognizes the relationship between parents and their natural/biological offspring is one of the most fundamental of human relationships only to be severed by strictly following certain statutory provisions for surrender, abandonment, or adoption. La.R.S. 9:402-462. Under the abandonment statutes, a child is considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove the parent has failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility. La.R.S. 9:403 A(l)(b). When evidence of failure to provide for the care and support of the child for a period of at least four months is introduced, a presumption is created that the parent intended to permanently avoid parental responsibilities, and the parent must present evidence which rebuts this presumption. La.R.S. 9:403 A(2). Due to its harsh consequences, all reasonable doubt should be resolved against entering a decree of abandonment, which is in derogation of the natural right of the parent. In the Interest of Shumaker, 341 So.2d 583, 585 (La.App. 2d Cir.1977).

While recognizing the appropriate statutory and case law’s burden of proof in an abandonment action and also finding this action was not an attempt to circumvent the consent requirement for adoption, the trial judge nevertheless thought the evidence indicated James Marchadie’s intention to permanently avoid all parental responsibilities. We disagree with this conclusion. His focus on the events prior to Marchadie’s incarceration indicates his concern for Marchadie’s actions as a free man, capable of providing financial support for his child. In his reasons for judgment, he stated James’ failure to provide for the care and support of his child indicated his intention to permanently avoid all parental responsibility. However, failure or even refusal of a parent to support a child is not sufficient cause to justify a decree of abandonment. Shumaker, 341 So.2d 583, 585; Id the Interest of Foret, 398 So.2d 78, 81 (La.App. 4th Cir.1981).

The important question is whether James’ conduct both prior and subsequent to his incarceration indicates his intention to avoid parental responsibility. See, La. R.S. 9:403 A(l)(b). Relevant to our analysis is the uncontested fact he called his wife continuously during the period prior to his filing of the Rule for Visitation and did inquire as to the child’s welfare although his motivation for his calls is in dispute.

Most importantly, prior to his incarceration, he initiated judicial action to establish visitation rights and entered into a consent judgment for the child’s support with all the legal consequences and sanctions which such a judgment entails. These actions do not evidence an intent to avoid parental responsibility albeit he took little actual responsibility for the child’s financial support during this period.

We also find relevant his post-conviction gifts and letters from prison and his concern demonstrated by his asking his mother-in-law, sister-in-law, and a friend for pictures or news of his daughter. In light of the totality of circumstances, James Mar-chadie’s conduct does not indicate an intention to avoid parental responsibility.

For these reasons, the judgment of the Juvenile Court is reversed, and it is ordered that this action be dismissed.

REVERSED AND RENDERED.


text:
    Maria GUERRERO v. Taco TICO and Reliance Insurance Company.
    No. 83-CA-312.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 16, 1983.

      Bryon, Nelson, Allen & Schroeder, Maria I. O’Byrne Stephenson, New Orleans, for plaintiff-appellee.
    O’Keefe, O’Keefe & Berrigan, Joseph F. LaHatte, Jr., New Orleans, for defendants-appellants.
    Before CHEHARDY, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this worker’s compensation suit, defendants, Taco Tico and Reliance Insurance Company, appeal a judgment which found plaintiff, Maria Guerrero, totally and permanently disabled pursuant to La.R.S. 23:1221(2) and awarded compensation payments of $44.33 per week beginning on the date of the last compensation payment continuing for the duration of the disability together with all medical expenses, all costs of the trial court proceedings, and legal interest from the date of judicial demand. We affirm.

The issues presented are:

(1) Whether plaintiff experienced a work-related injury?
(2) Whether plaintiff has proven she belongs in the odd-lot category of worker’s compensation cases which qualifies her for permanent and total disability status?

FACTS

On November 4,1977 while working as a cook for Taco Tico, plaintiff allegedly fell and injured her left elbow. Testimony at trial indicated that previously in April 1977, Ms. Guerrero had fallen outside Taco Tico and injured her left arm.

After reporting the incident to her supervisor, she was taken to the emergency room of a local hospital where she initially received treatment. She has continued under medical supervision to the date of the trial. Initially, Ms. Guerrero saw Dr. Alain Cracco for treatment of her arm. He indicated she had a double fracture of her left elbow. She then developed post-traumatic arthritis of the elbow, but he recommended only conservative treatment due to residual edema and swelling. Due to her continued discomfort, in March 1978 Ms. Guerrero underwent surgery in the nature of an excision of the radial head of her left elbow which was followed by physical therapy and medication; however, she continued to experience pain, and upon the request of the compensation insurer, she visited Dr. Raoul Rodriguez for another medical opinion in September 1979. In August 1980, Dr. Rodriguez performed surgery on her left elbow which involved an anterior transposition of the ulnar nerve but the pain only intensified. Since this surgery, Ms. Guerrero has continued to experience pain, discomfort, and swelling in the left arm. In October 1981 she saw Dr. Stuart Phillips for treatment of her arm, and he remained her treating physician until the date of trial. Since her accident in November 1977, she also consulted Dr. Irwin Reddler, Dr. Cor-rea, and Dr. J. Monroe LaBorde.

According to Dr. Phillips’ report, she has “an unfortunate post-operative complication of post-traumatic sympathetic dystrophy.” Dr. Cracco, Dr. Rodriguez, and Dr. Reddler also indicated in their reports that plaintiff suffers swelling and aching in and around her left elbow. However, Dr. La-Borde who examined plaintiff one time on May 24, 1982 found “no objective physical impairment on examination.” He gave her a ten to fifteen percent physical impairment of the left arm and indicated she could return to her previous occupation.

Ms. Guerrero was born in Columbia and moved to the United States in 1966. While her primary language is Spanish, she is able to both read and understand the English language. She received her education in Columbia. This consisted of completing grammar school, junior high school, and a specialized training program in education. She is certified to teach grammar school in Columbia.

Although attempting various jobs since her injury in November 1977, plaintiff testified she was unable to work without severe pain. She did complete 1100 hours of a 1500 hour beautician vocational training program but was unable to -complete the course due to pain and swelling in her left arm.

Defendants presented a vocational rehabilitation evaluation report compiled by the Crawford Rehabilitation Services to show job availability for plaintiff. Based on her educational and vocational work background, the report suggested several job possibilities in the areas of sales clerk, educational assistant-teacher’s aide, cashier, library assistant, and Spanish speaking desk clerk. Defendants also introduced a labor market survey for the Greater New Orleans area which indicated specific job availability in the New Orleans area.

WORK-RELATED INJURY

Plaintiff’s employer and its worker’s compensation insurer contend that allegations in plaintiff’s original petition for worker’s compensation benefits, plaintiff’s deposition introduced into evidence, and the emergency room report also admitted into evidence, cast doubt as to plaintiff’s credibility. Her original petition contained a statement that her first injury happened while she was within the course and scope of employment in April 1977 on a street outside of Taco Tico. However, in her deposition, plaintiff stated, in April 1977, she fell outside a movie. At trial, plaintiff stated she first injured her arm by falling on a street in front of Taco Tico as she was on her way to the movies. Plaintiff’s counsel explained the statement in the petition as a misunderstanding due to a translation problem since plaintiff is primarily Spanish-speaking. Defendants also claim that discrepancies in the emergency room report and plaintiff’s trial testimony east “grave doubt” as to whether the alleged second accident is work-related. Referring to plaintiff’s second accident, the emergency room report states plaintiff fell at home and injured her left elbow; however, plaintiff testified, at trial, she fell while working at Taco Tico. Defendants claim these different versions so damage plaintiff’s credibility and cast doubt as to whether the claim is compensa-ble.

The trial judge in his reasons for judgment, however, found plaintiff fell and injured her left elbow while punching out her time at the time clock. He found this accident aggravated an existing injury on the same arm. Due to the trial court’s better capacity to evaluate live witnesses, our standard for appellate review requires us to give great weight to the trial court’s factual findings of work-related disability. These findings should not be disturbed where there is evidence before the trier of fact which upon the latter’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for the trial court’s finding, unless clearly wrong. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300, 301-302 (La.1979). We cannot conclude that the trial court’s finding of a work-related disability is clearly wrong.

EXTENT OF DISABILITY

In his reasons for judgment, the trial judge stated:

Petitioner’s continued pain and inflamation (sic) of the elbow, in combination with other factors of the “odd-lot” doctrine which apply in her case, make her steady employment in a reconized (sic) calling in the labor market either highly doubtful or non-existent. (Emphasis added.)

Defendants challenge this “odd-lot” finding. They claim that plaintiff did not present a prima facie case for classification in the odd-lot category; furthermore, they claim they have carried their burden of demonstrating that there are jobs available within the range of plaintiff’s ability and that she has a capacity to provide herself with a steady means of income. Oster v. Wetzel Printing, Inc., 390 So.2d 1318, 1324 (La.1980). For support of their contention of plaintiff’s ability to work, defendants point to four doctors who at various times noted plaintiff had a permanent partial disability, but advised her she “should” be able to return to work. They also point to their rehabilitation report which stated that she should qualify for several light and/or sedentary occupations and listed specific jobs available in the New Orleans area.

Under the “odd-lot doctrine,” if a claimant’s pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market, he is classified as permanently disabled unless realistically there are jobs available to him in which the claimant can earn wages. However, where the claimant cannot perform the same work he did before because it causes him substantial pain, but claimant has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Lattin v. Hica Corp., 395 So.2d 690, 693-694 (La.1981). In compensation cases where pain is the linchpin to make out a prima facie case for a worker’s classification in the odd lot category, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe. Culp v. Beldon Corporation, 432 So.2d 847, 850 (La.1983). Moreover, in determining disability, the entire record, both lay testimony, medical evaluation, and opinions, should be considered, because this issue of fact requires the judicial application to all the evidence of the legal test of disability, to which medical estimates of the ability to work must yield. Crump, 367 So.2d 300, 302; Lucas v. Insurance Company of North America, 342 So.2d 591, 596-597 (La.1977); Tantillo v. Liberty Insurance Company, 315 So.2d 743, 748-749 (La.1975); Williams v. Hudson East, 261 La. 959, 261 So.2d 629, 631 (La.1972).

The record contains numerous doctors’ reports indicating plaintiff experiences pain and considerable swelling in her left arm. Moreover, her complaints of substantial pain are corroborated through Dr. Phillips’ diagnosis of her condition in June 1982 as post-traumatic sympathetic dystrophy. In his March 1982 deposition he described the pain of post-traumatic sympathetic dystrophy as “significant.” Although the trial judge did not articulate the other factors he considered in combination with plaintiff’s pain, we note plaintiff has some difficulty in communicating in English, limited work experience, and little job training. While defendants’ rehabilitation report indicates several jobs in other fields, which plaintiff may be qualified to perform, these are not readily available to plaintiff. The record indicates that she not only applied for a position with her previous employer and was refused, but that she also applied for positions similar to those described in defendants’ rehabilitation report but was not offered any of these jobs.

We find plaintiff’s pain in combination with her lack of work experience, language skills, and job training prevent her stable employment in work she is capable of performing. With proper training, plaintiff may become employable; however, she is not employable presently. We affirm the trial court’s award for total and permanent disability but recognize the defendants’ right to modify the award under La.R.S. 23:1331 should circumstances change.

For the reasons assigned, the judgment of the trial court awarding appellee benefits for permanent and total disability, medical expenses, and all costs of the trial court proceedings is affirmed, subject to future modification in accordance with La. R.S. 23:1331. The costs of this appeal are assessed against appellants, Taco Tico and Reliance Insurance Company.

AFFIRMED.