author: WARD, Judge.

text:
    STATE In the Interest of A.E. and J.D.
    No. CA 1295.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Richard Ducote, Dept, of Health & Human Resources, Sp. Asst. Dist. Atty., Orleans Parish, New Orleans, for State of La., plaintiff-appellant.
    Mark McTernan, McTernan, Parr & Ru-mage, New Orleans, for Ernestine Yava, defendant-appellee.
    Before WARD, BYRNES and AUGUSTINE, JJ.
   WARD, Judge.

In this appeal we are called upon to decide whether due process prohibits the State of Louisiana from proceeding with its action to terminate the parental rights of a comatose mother who is unable either to appear in court to defend herself or to communicate with her appointed counsel to prepare her defense. We conclude it does not, and we reverse the ruling of the Juvenile Court which quashed the State's petition to terminate parental rights.

The State’s petition is the culmination of a series of state actions. In 1971, the State charged the mother, Ernestine Yava, with abuse of her minor son, A.E., a two year old. When the case was tried, the State introduced witnesses who testified that Ms. Yava attempted to drown her son in a public fountain. A.E.’s alleged father had long since disappeared, and after hearing the evidence, the Juvenile Court Judge placed A.E. in a foster home where he has remained ever since. His foster parents now wish to adopt him, and A.E., now 14 years old, fervently hopes to be adopted by them.

In 1981, the State again charged Ms. Yava, this time for the neglect of her second illegitimate child, R.D., "a daughter, then six months old. When that case was tried, the State showed that a social worker had found R.D. living in a feces-ridden apartment, dirty, shabbily clothed, and neglected. R.D.’s alleged father, like A.E.’s, had long since disappeared. The Juvenile Court Judge ordered R.D. placed with foster parents, although not the same as A.E.’s, and they too want to adopt her. She is now two years of age.

Ms. Yava has a lengthy medical history which indicates she is severely mentally ill, has delusions, and is out of contact with reality. Recently, she has become physically ill as well. While walking in the street, she collapsed and was taken to a hospital where physicians found organic brain damage, hemorrhaging of blood vessels in the brain. She is now comatose, unable to care for herself or even to communicate, and is confined in a hospital where she is fed intraveneously. While treating physicians do not consider her “brain dead”, they have no hope for her recovery.

Because Mrs. Yava is unable to communicate and because of her past conduct, we are unable to say with any certainty that we are presented with a direct conflict between the interest of a mother who wants to retain her parental rights and those of the State and her children who want to terminate those rights. Nonetheless, her appointed counsel has presumed, as he should, that Ms. Yava wants to keep her children and he has vigorously asserted her presumed interest in retaining her parental rights. He argues that due process demands suspension of proceedings until Ms. Yava regains competency and is able to personally appear in Court to defend her interest, if she desires. Consequently, we must decide if due process requires the State to defer to a mother’s interest to be present in Court and to be given an opportunity to present a meaningful defense through communication with her appointed counsel. •

Louisiana statutory law does not require suspension of proceedings to terminate parental rights when a parent is either mentally incompetent or physically ill and unable to appear in court in the foreseeable future. Of course the Juvenile Court Judge has limited discretion to continue the proceedings, but the question is whether due process requires indefinite suspension of the action.

If competent, Ms. Yava could appear in Court to defend herself to the best of her ability without counsel. But because she is incompetent, Ms. Yava can neither undertake her defense by appearing in Court nor assist counsel in her defense. Consequently, the issue is broader and more comprehensive than the Constitutional question of the right to effective assistance of counsel.

After considering the requirements of procedural due process, we conclude the State has the right to proceed in its efforts to terminate parental rights, which would permit the foster parents of A.E. and R.D. to adopt them.

The concept of procedural due process, broadly defined as one of “fundamental fairness,” requires that minimal procedural safeguards must be established before the state may deprive a person of fundamental rights of life, liberty, or property. Whether the procedural safeguards established measure up to due process depends on the nature of the proceeding and the nature of the right or interest affected. Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The rights of parents to the companionship, care, custody and management of their children is a fundamental liberty interest warranting great deference and vigilent protection under the law. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Consequently, these proceedings which would irreversibly terminate a parent’s rights must comport with the highest standard of due process, Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); State in re Delcuze, 407 So.2d 707 (La.1981).

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the United States Supreme Court defined due process standards which the Court has applied in parental rights termination cases. Lassiter; Santosky v. Kraemer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

When measuring State proceedings against due process standards Mathews requires a consideration of:

First, the private interest that will be affected by the official action; Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirements would entail. 424 U.S. at 334-335, 96 S.Ct. at 902-903.

The Private Interest

There are two private interests to be considered in any parental rights termination case: those of the parents and those of the children. In Lassiter, the U.S. Supreme Court declared it “clear beyond the need for multiple citation” that parental rights constitute an interest “far more precious than any property right” and that a termination of parental rights is a “unique kind of deprivation”. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159. The potential loss to the parent is grievous, perhaps more so than incarceration. State in re Howard, 382 So.2d 194, 198 (La.App. 2nd Cir.1980).

On the other hand, children have a profound interest, often at odds with those of a parent, an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long term, continuous relationships in contrast to the lingering uncertainty of foster care, Lehman v. Lycoming County Social Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982).

Ms. Yava’s counsel argues that due process requires protection of her interest to the same extent as those of an incompetent criminal defendant, meaning, when once found incompetent, the proceedings must stop until competency is regained. See La. C.Cr.P. art. 641. There is a great similarity because of the gravity of the interest affected, yet there is a vast difference between the two.

In criminal proceedings, there is only one private interest, those of the defendant. In these proceedings there are two, those of the mother and those of the children. In State of Louisiana in the Interest of Driscoll, 410 So.2d 255 (La.App. 4th Cir.1982), when forced to choose between the interest of a parent and the interest of a minor child, this Court found the interest of the child were paramount.

In this case we believe the interest of the children in stabilizing their identity and home life by a judicial determination are greater than Ms. Yava’s interest in her day in Court by being physically present and able to communicate with her counsel.

Moreover, she will not be entirely deprived of her day in court. The State, by providing for appointment of counsel, and the Juvenile Court, by appointing counsel to represent Ms. Yava, has given her the opportunity, through- her counsel, to find and present witnesses in her behalf, and to cross examine those that testify for the State acting in the interest of the minors. Although Ms. Yava cannot appear and testify, her counsel may seek and produce witnesses, including expert witnesses, to testify in her behalf, limited only by the possibility that none can be found who will testify favorably. And in this case, nothing impedes counsel from cross-examination of anticipated expert witnesses for the State, psychiatrists, other medical doctors, and social workers, to test their opinions.

There is nothing shocking in the procedure we approve. It does not violate concepts of fundamental fairness. In fact, the ABA Code of Professional Responsibility recognizes that an attorney may be charged with representing an incompetent client who can neither appear in Court nor communicate with counsel.

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer.... If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client.... If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. EC 7-12.

The Risk of Error

Mathews, supra, requires this Court to evaluate the risk of erroneous deprivation of Ms. Yava’s parental rights and to consider whether additional or substitute procedural safeguards would reduce that risk. The tolerable margin of error depends on the nature of the threatened loss, severe and lasting in this case.

Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact finder turns on both the nature of the private interest threatened and the permanency of the threatened loss. Santosky, 455 U.S. at 758, 102 S.Ct. at 1396.

The State of Louisiana has adopted a comprehensive procedure to reduce risk of error and to afford due process. La.R.S. 13:1600, et seq. Provisions for appointment of counsel either meet or exceed United States Constitutional standards. State in re Howard, 382 So.2d 194 (La.App. 2nd Cir.1980), La.R.S. 13:1603. Lassiter, supra. In the instant case, for reasons previously discussed, we believe appointment of counsel has reduced the risk of error to a minimum. When counsel has been appointed, due process does not always require an opportunity to be present in court or the ability to communicate with counsel. As an example, judicial commitments of the mentally ill, La.R.S. 28:50 et seq.;, 28:54(C) and interdiction of incompetents, La.C. Civ.P. art. 4544, have been found to meet due process standards, even when physical presence is impractical or when the ability to communicate with counsel is lacking.

Presence of the respondent in a civil proceeding to prove the party incompetent is not a requirement of due process. Rud v. Dahl, 578 F.2d 674 (7th Cir. 1978). The party’s presence at trial is a “condition of due process to the extent that a fair and just hearing would be thwarted by his absence and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934). By providing for appointed counsel, the State has protected her rights more than required by due process.

Finally, the risk of error is reduced by requiring the State to prove by clear and convincing evidence that termination of parental rights is in the best interest of the minors. Santosky.

We have considered whether additional or substitute safeguards exist and we find none, and none has been suggested by counsel. We also have considered the alternative suggested by counsel — halt these proceedings, deprive the children of the opportunity for adoption, and consign them to foster care status for an indefinite time. We reject this choice. Considering both the risk of error and the alternatives available, we believe the risk should be undertaken because there are no acceptable alternatives.

The Governmental Interest

The State has two interests: a “parens patriae” interest in the welfare of children and a fiscal interest in eliminating the costs of maintaining children in its custody. These two State interests may diverge in cases where the best interest of the child dictate nurture of the parent-child relationship through the expenditure of State funds for counseling, foster care and other services. However, where the child’s best interest will be served by termination of parental rights and adoption, both State interests are promoted when the minor child is adopted and cost of State custody ended.

While the State’s fiscal interest to reduce custodial costs is insignificant when compared to parental rights, State in re Driscoll, 410 So.2d 255 (La.App. 4th Cir. 1982), the State’s interest in the welfare of the children is not. We believe the State’s interest as parens patriae is so overwhelming that Ms. Yava’s interest must give way.

Judgment

In sum, due process is a requirement of fundamental fairness. Applying due process is “an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.” Lassiter, 452 U.S. at 24-25, 101 S.Ct. at 2158-2159.

We find the balance favors permitting the State to proceed with its efforts to terminate parental rights. Whether the State can prove the merits of its case for termination of parental rights by clear and convincing evidence is a decision for the Juvenile Court Judge. The Trial Court’s order quashing the petition is vacated.

Reversed and remanded.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    Thomas B. FAVROT, et al. v. Clifford F. FAVROT, Jr.
    No. 83 CA 0284.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Malcolm A. Meyer, Mary Ann McGrath Swaim, New Orleans, for plaintiff, appellant.
    Max Nathan, Jr., Jerome K. Lipsich, New Orleans, for defendant, appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

On November 3, 1981, Thomas, Allen, Blair and Clifford F. Favrot, Sr., filed a petition for declaratory judgment against Clifford F. Favrot, Jr., defendant. The petition sought to have Thomas, Allen and Blair declared lessees of certain property possessed by defendant.

The disputed property is part of a larger parcel leased by Clifford F. Favrot, Sr., from Carol Realty Corporation, a closely held family corporation. Gervais and Olga Favrot, Clifford, Sr.’s brother and sister, also held leases from Carol Realty on property adjacent to Clifford, Sr.’s parcel.

Clifford, Sr., father of the other' plaintiffs and defendant, desired to apportion his leasehold interests among his sons. Gervais and Olga were similarly inclined. Thus, a document was prepared to assign in indivisión the lease interests of Gervais, Olga and Clifford, Sr., to their respective children. The children would then execute new, separate leases with Carol Realty to divide their parents’ lease interests into separate, individual parts.

Although Clifford, Jr. signed the document assigning his father’s lease interests to himself and his brothers, he refused to execute the new lease partitioning the interests. Subsequently, he took possession of the disputed property.

At a special meeting of the Board of Directors of Carol Realty Corporation, held May 9, 1981, the Board purported to set aside the assignment document because all family parties had failed to sign after Clifford, Jr.’s action. New assignments were authorized, which led to the assignment of Clifford, Sr.’s lease interest to Thomas, Allen and Blair on August 26, 1981. When Clifford, Jr. refused to vacate the disputed property, plaintiffs brought this suit for declaratory judgment.

Defendant filed a peremptory exception of no right of action. But, before the court ruled on this exception, a suit for eviction was filed on August 5, 1982, by Carol Realty and the plaintiffs in the declaratory judgment suit. These two suits were consolidated, and on December 1, 1982, the district court sustained defendant’s exception of no right of action to the initial suit.

Plaintiffs appeal the ruling of the trial court on the exception of no right of action.

LSA-C.C.P. art. 927(5) provides that one of the peremptory exceptions is: “No right of action, or no interest in the plaintiff to institute the suit.” The essential function of this exception is to provide a threshold device for terminating a suit brought by one without the legal interest to assert it. Watkins v. Louisiana High School Athletic Ass’n, 301 So.2d 695 (La. App. 3rd Cir.1974).

The requirement that the plaintiff have a “legal interest” is dealt with more particularly in the articles governing declaratory judgments. LSA-C.C.P. art. 1872 provides as follows:

“A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

In Guidry v. Roberts, 331 So.2d 44, 47 (La.App. 1st Gir.1976), reversed on other grounds, 335 So.2d 438 (La.1976), this court cited LSA-C.C.P. art. 1872 and went on to state:

“Standing is a concept utilized to determine if a party is sufficiently affected so as to ensure that a justiciable controversy is presented to the court. The requirement of standing is satisfied if it can be said that the plaintiff has a legally proteetible and tangible interest at stake in the litigation. See, Hainkel v. Henry, 313 So.2d 577 (La.1975); Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971).”

In the petition for declaratory relief, plaintiffs requested that they “be declared the lessees from Carol Realty of the property described” in the exhibits. The questions to be decided in the suit include the validity of the various assignments and leases. Plaintiffs, as signators of the documents, clearly have a legal interest in obtaining a declaration of their rights under the documents.

For the above reasons, the judgment of the trial court is reversed, the exception of no right of action is overruled, and the matter is remanded to the trial court for further proceedings. Costs to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    LANIER BUSINESS PRODUCTS, INC. v. ALPHA OF LOUISIANA, INC., d/b/a Ault Clinic.
    No. 83 CA 0318.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      William D. Grimley, Baton Rouge, for plaintiff-appellant Lanier Business Products, Inc.
    Dennis R. Whalen, Baton Rouge, for defendant-appellee Alpha of Louisiana, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for breach of lease. Plaintiff herein appeals from a trial court judgment granting defendant’s motion for dismissal and denying plaintiff’s motion for a new trial.

Plaintiff, Lanier Business Products, Inc. (Lanier), negotiated the lease of certain word processing equipment to defendant, Alpha of Louisiana, Inc., d/b/a Ault Clinic (Alpha). On April 15, 1981, Alpha, through its president, Dr. Ault, signed a standard lease agreement supplied by Lanier; however, the lease agreement was never signed by Lanier. Lanier Financial Services, Inc. (Finance), a subsidiary of Lanier, provided the financing for the lease agreement by purchasing the account receivable from La-nier.

The equipment was subsequently delivered to Alpha. However, by letter dated August 24, 1981, (some five weeks after date of delivery) Dr. Ault notified Finance that he wanted the equipment to be picked up as it was not “what he wanted in our office.” To date, Alpha has made only the initial payment of $508.33 and Lanier has not picked up the equipment.

Lanier subsequently filed suit against Alpha alleging breach of the lease agreement and seeking acceleration of all payments due thereunder.

A trial was held on November 4, 1982, and at the close of plaintiff’s case, the defendant moved for dismissal. Defendant argued that Lanier had never accepted the lease, and thus there was no contract to sue upon, and secondly, that Finance and not Lanier owned the equipment, therefore, Lanier was not the proper party plaintiff. The trial court granted the dismissal, ruling that Lanier was not the proper party plaintiff.

On appeal, plaintiff contends that the trial court erred in granting defendant’s motion for dismissal and in denying plaintiff’s motion for a new trial.

In ruling on defendant’s motion for dismissal, the trial court stated that Finance, rather than Lanier, was the proper party plaintiff. In reaching its decision, the trial court apparently relied on the testimony of Mr. Grand, regional manager for Lanier. Mr. Grand testified that according to the agreement between Lanier and Finance once equipment was leased to the customer, Lanier would sell the equipment to Finance. Finance would then become the lessor of the equipment and collect the monthly rental.

However, an examination of the record convinces us that the testimony of Mr. Grand was erroneous and the trial judge erred in granting the dismissal based on Mr. Grand’s testimony.

The “Operating Agreement” in effect between Lanier and Finance contains the following pertinent provisions:

(1) From Article I, “Definitions”:

“(6) ‘Lease’: Any agreement between Lanier and its Customers whereby Lanier rents or leases Equipment to Customers. Notwithstanding anything to the contrary contained herein, any reference to the purchase of a Lease shall refer to the purchase only of the right to receive all payments due under such Lease and the right to demand, obtain and receive the benefit of all other performance from the Lessee ancillary to such payments. Lanier shall remain the owner of the Equipment covered by such Lease, subject to a security interest in favor of Finance and shall remain obligated to perform all obligations of the Lessor thereunder.”

(2) From Article II, “Purchase and Sale of Receivables Documentation and Administrative Procedures”:

“(4) Collections: Finance shall be responsible for collecting all of its Receivables at its own expense subject only to the provisions of Article VI hereinbelow. Lanier shall promptly endorse and forward to Finance, in the form received, all remittances which Lanier receives from Customers.”

(3) From Article VI, “Default by Customer”:

“Upon any Receivable becoming 120 days past due or otherwise being reasonably declared uncollectable by Finance, such Receivable shall be deemed in default (‘Default’). Upon the Default of any Receivable, Lanier shall repurchase the Receivable from Finance for an amount determined as provided in Paragraph (1) of Article IV. Finance shall reassign to Lanier any right, title and interest it may have to the Equipment and the Receivable(s).

From the above quoted provisions, it is clear that Mr. Grand’s testimony concerning the arrangement between Lanier and Finance was incorrect. According to the “Operating Agreement”, Finance purchases the account receivable from Lanier and collects the monthly lease payment. In instances where the customer defaults, La-nier is obligated to repurchase the account receivable from Finance. Lanier retains title to the leased property at all times.

In the instant case, at the time suit was filed on November 17, 1981, the account receivable was owned by Finance. However, the record contains a copy of a letter dated March 25, 1982, in which Finance requested a credit memo from Lanier for the amount of the lease. By taking this action, Finance complied with the “Operating Agreement” quoted from above and upon default of Alpha, transferred the account receivable to Lanier. Therefore, La-nier is the proper party plaintiff.

Plaintiff also assigns as error the judgment of the trial court denying his motion for a new trial. Plaintiff argues that the motion should have been granted in order to allow him an opportunity to present additional evidence in support of his contention that Lanier was the proper party plaintiff. Since we have determined from the evidence in the record that Lanier is the proper party plaintiff, the appeal on this issue is moot.

Accordingly, we reverse the ruling of the trial court dismissing plaintiff’s suit and remand the case in order to afford the trial court the opportunity to rule on the remaining ground for dismissal, viz., whether there was a valid acceptance of the contract.

Costs on appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.

      . Although defendant moved for a directed verdict, said motion is more properly made in jury cases. This was apparently recognized by the trial judge who granted a judgment of dismissal. LSA-C.C.P. art. 1810.


author: WATKINS, Judge.

text:
    CON-PLEX, DIVISION OF U.S. INDUSTRIES, INC. v. VICON, INCORPORATED, and Reliance Insurance Company.
    No. 83 CA 0442.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      John C. Miller, Baton Rouge, for plaintiff-appellant Con-Plex, Div. of U.S. Industries, Inc.
    Henry Klein, New Orleans, for defendant-appellee Vicon, Inc.
    Charles S. McCowan, Jr., Baton Rouge, for defendant-appellee Reliance Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is an action brought by Con-Plex, Division of U.S. Industries, Inc., a contractor, against Vicon, Inc., its subcontractor, and Reliance Insurance Company, the subcontractor’s surety, for damages for alleged failure of the subcontractor to complete its work on time and in an acceptable manner. Reliance filed a peremptory exception of prescription or peremption of two years, founded upon a prescriptive or peremptive period of two years set forth in the surety contract. Reliance was dismissed as a party defendant on the basis of the exception, and Con-Plex appealed. We affirm.

Vicon entered into a subcontract with Con-Plex, the contractor, under which Vi-con as a subcontractor undertook to perform asphalt work in connection with the Moisant Airport Interchange, Louisiana Project No. 450-15-42, FAP No. 1-55-5 (166) 223, Jefferson Parish, Louisiana. Vi-con supplied a surety bond to Con-Plex with Reliance as surety which contained the following paragraph:

“Any suit under this bond must be instituted before the expiration of two years from date on which final payment under the subcontract falls due.”

The contract between Con-Plex as general contractor and Vicon as subcontractor contained the following provision with regard to the time within which the subcontractor, Vicon, was to be paid:

“Article XII
The terms of payments as to current and final payments as set forth in the above-mentioned contract, and all documents forming a part thereof, between Contractor and Owner are to exist as between Contractor and Sub-Contractor, and Contractor shall pay to Sub-Contractor not later than 20 days following each payment to the Contractor, the amount allowed Contractor on account of work performed by Sub-Contractor, to the extent of the Sub-Contractor’s interest therein.”

Vicon admitted in response to Request for Admissions of Fact and Genuineness of Documents that the copies of the contract between Con-Plex and Vicon and of. the surety bond furnished by Vicon (which were annexed to plaintiff's petition), from which we quote above, are true copies of the originals.

Furthermore, Vicon admitted that the contractor received the final retainage on that Project No. 450-15-42 by check dated January 22, 1980. The present suit was filed November 3, 1982.

The contractor was to pay the subcontractor within 20 days after it received each payment, as we have seen from the matter quoted last above. The first quotation establishes a two year period within which the surety may be sued after final payment to the subcontractor fell due. These provisions are clear and unambiguous, and it cannot successfully be controverted, if these provisions are enforceable in a suit brought by the contractor against the subcontractor’s surety, that these provisions apply:

LSA-C.C.. art. 11 reads as follows:
“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public .order or good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”

In Landis & Young v. Gossett & Winn, 178 So. 760 (La.App. 2d Cir.1937), writ denied (1938), it was held that a surety bond entered into by a subcontractor could place a time limitation upon the right of one of the signatories thereto to proceed against the other, shorter than the general prescriptive period, which would be enforceable by a plea of prescription or peremption.

Likewise, in Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961), it was noted that parties to a contract are free to stipulate a shorter period of prescription than that provided by state statute, the Louisiana Supreme Court citing a great number of Louisiana cases.

Thus, it is clear that the two year prescriptive or peremptive period in the surety bond furnished by Reliance in the present case is enforceable, and indeed, must be enforced.

Con-Plex argues that delays on the part of Vicon rendered uncertain the time within which Vicon was to be paid, and thus rendered the surety bond and subcontract entered into by Vicon ambiguous. As we have stated, the surety bond and the language of the subcontract are clear- and unambiguous. Any action brought against the surety, Reliance, must be brought within two years and twenty days after final payment to the subcontractor. Final payment was made to Con-Plex on January 22, 1980. Suit was not brought by Con-Plex within the required time, two years and twenty days after final payment. Prescription has run. As to any alleged ambiguity in the terms of the two contracts, we must note that the manner of execution of a contract is relevant to its construction only when the contract is of doubtful intent as a result of inherent ambiguity. LSA-C.C. art. 1956. Here, as we have seen, the two contracts are clear and unambiguous.

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

AFFIRMED.


text:
    ENDICON, DIVISION OF U.S. INDUSTRIES, INC. v. VICON, INCORPORATED, and Reliance Insurance Company.
    No. 83 CA 0440.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    John C. Miller, Baton Rouge, for plaintiff-appellant Endicon, Div. of U.S. Industries, Inc.
    Bernard L. Balkin, and Michael J. Blake, Kansas City, Mo., for defendant-appellee Vicon, Inc., et al.
    Charles S. McCowan, Jr., Baton Rouge, for defendant-appellee Reliance Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

The facts of the present case are substantially similar to those presented in Con-Plex v. Vicon, Inc. now before this court, La.App.1984, 448 So.2d 191. The present subcontract was entered into by Endicon, division of U.S. Industries, Inc., and Vicon, Inc. Reliance Insurance Company was surety on the subcontractor’s bond. This case involves asphalt work on the Poncha-toula-Manchac Highway, Manchac Interchange, State Project # 452-02-45, FAP No. 1-55-1(34)14, Tangipahoa Parish, Louisiana. The trial court sustained a peremptory exception of prescription or peremption of two years based upon language in the subcontract and surety bond identical to that involved in Con-Plex, supra. Final retainage due on State Project No. 452-02-45 was paid by the State of Louisiana to the contractor, Endicon, on November 13, 1979. Plaintiff’s petition was filed November 3, 1982.

For the reasons set forth in Con-Plex, supra, we hold that the prescriptive period set forth in the surety contract had run before suit was filed. Accordingly, we affirm the judgment of the trial court in dismissing plaintiff’s cause of action against Reliance Insurance Company with prejudice, all costs to be paid by Endicon, division of U.S. Industries, Inc.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Wilma S. TONEY v. DEPARTMENT OF CORRECTIONS, Louisiana Training Institute at Monroe.
    No. 83-CA-0443.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Harvey R. Lexing, Monroe, for appellant.
    Annette R. Seng', Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for Herbert L. Sumrall.
    Before LOTTINGER, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Appellant, Wilma S. Toney, was employed by the Louisiana Department of Corrections as a Registered Nurse I at the Louisiana Training Institute in Monroe, Louisiana. By letter of November 20, 1981, appellant was notified that she was to be separated from her position effective December 3, 1981. Toney appealed her dismissal to the Louisiana Civil Service Commission (the “Commission”). Prior to the date for hearing Toney’s appeal, appel-lee, the Department of Corrections, filed a motion for summary dismissal of the appeal. After hearing oral argument and receiving appellant’s memorandum in opposition, the Commission rendered its opinion, denying the appeal, Wilma Toney has appealed to this court, seeking judicial review of the Commission’s decision.

The letter of November 20, 1981, which notified Toney of her termination, was signed by John T. King, Secretary of the Louisiana Department of Corrections. King’s letter asserted that Toney was hired on April 27, 1981, subject to a six-month probationary period. The letter went on to .state the following:

“During your probationary period your work performance has been below the high standards set for employees of the Department of Corrections. Your probationary period was extended for three months pending the outcome of an internal investigation into the medical services at Louisiana Training Institute-Monroe.
“On October 13 and October 14, 1981, Vallerie Ibert, Registered Nurse IV, conducted this investigation by reviewing and investigating the medical procedures regarding pharmaceuticals, medication issuance, and drug mismanagement at Louisiana Training Institute-Monroe. She discovered that you had written orders for some students to be administered legend drugs. Additionally, you have behaved in a manner which directly conflicts with Department Regulation # 30-6 and federal regulations as well, concerning medical treatment and procedures for operational units.
“Therefore, because of your poor probationary work performance, this letter will serve to inform you that you will be separated from your position of Registered Nurse I at Louisiana Training Institute-Monroe, effective December 3, 1981.”

Toney’s notice of appeal, prepared by her attorney, set forth the above quoted passages from John King’s letter, and asserted that “the above allegations are totally false, without merit and [appellant] specifically denies each and every allegation contained therein.” Appellant’s notice of appeal asserted that her dismissal was arbitrary, capricious, and without basis. Finally, the notice alleged discrimination as an additional basis for the appeal.

As noted above, the Department of Corrections requested summary dismissal of the appeal pursuant to Civil Service Rule 13.14. The motion asserted that Toney was a probationary employee and had no right to appeal her dismissal unless the basis of the appeal was a claim of discrimination or violation of a Civil Service Rule. The motion asserted that Toney’s notice of appeal failed to plead discrimination with the detail and particularity required by Rule 13.11(d).

The Commission heard oral argument on the Department of Corrections’ motion and allowed counsel for appellant to file a memorandum in opposition. The Commission’s opinion concluded that because Toney was a probationary employee the only basis for her appeal was her claim of discrimination. See LSA-Const. Art. X, sec. 8. Although appellant alleged discrimination in her notice of appeal, the Commission concluded that the allegations did not meet the requirements of Civil Service Rule 13.11(d), which requires pleading of the specific facts supporting the conclusion of discrimination. Because the Commission concluded that Toney’s notice of appeal failed to plead sufficient specific facts to support the conclusion of discrimination, it denied her appeal.

Toney makes a number of specifications of error in this court. She contends that the Commission erred in the following respects:

1. Finding that she was a probationary employee and had no basis for appeal other than discrimination;
2. Finding that the contents of her notice of appeal did not meet the requirements of Civil Service Rule 13.-11(d); and
3. Dismissing her appeal rather than allowing her to amend her appeal notice.

Finally, appellant contests the constitutionality of Civil Service Rule 13.11(d). In light of our conclusion that Toney’s first specification of error requires reversal of the Commission’s decision, the remaining specifications of error will not be considered.

Summary disposition of civil service appeals are authorized by Civil Service Rule 13.14. The Commission’s summary dismissal of Toney’s appeal was based upon its conclusion that she was a probationary status at the time of her termination. However, Toney’s notice of dismissal disputed her status as a probationary employee, and there was no proof presented to the Commission to establish that fact.

The November 20, 1981, letter notifying Toney of her separation from employment stated that she had been hired on April 27, 1981, subject to a six-month probationary period. Thus, Toney’s probationary status would have ended in late October of 1981. The letter went on to allege a three-month extension of appellant’s probationary status. Toney’s notice of appeal specifically set forth and denied this allegation regarding extension of her probationary status. The Commission heard only oral argument on the motion for summary disposition. No evidence was presented to establish that appellant’s probationary period had been extended in accordance with Civil Service Rule 9.4. Thus, the Commission’s conclusion that Toney was a probationary employee at the time of her dismissal is not supported by the pleadings or any evidence in the record. Since that finding was the basis for the granting of the motion for summary dismissal, the opinion of the Commission must be reversed.

For the foregoing reasons, the opinion of the Civil Service Commission is reversed and the case is remanded for a hearing on the question of whether or not appellant’s probationary period had been extended in accordance with Civil Service Rule 9.4, and thereafter on the merits, if necessary. Costs are to be assessed after final determination.

REVERSED AND REMANDED.


author: GARTER, Judge:

text:
    Thomas ARCENEAUX, et al. v. Herbert COURTNEY, et al.
    No. 83 CA 0472.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Ernest M. Forbes, Baton Rouge, for plaintiffs-appellants Thomas Arceneaux and Mary Arceneaux.
    William E. Hodgkins, Baton Rouge, for defendants-appellees Herbert Courtney and Vera Courtney.
    Before PONDER, WATKINS and CARTER, JJ.
   GARTER, Judge:

Plaintiffs appeal the judgment of the trial court dismissing a portion of their suit on an exception of prescription.

On March 17, 1978, Thomas and Mary Arceneaux entered into a purchase agreement for a house with Herbert and Vera Courtney. The purchase agreement provided as follows:

“Owner to furnish termite certificate by bonded firm. If termite damage or infestation exists, owner shall have privilege of repairing same at his expense.”

By act of sale dated May 9, 1978, the Arceneauxs purchased the house from the Courtneys. Termite infestation and damage resulting therefrom were discovered on September 18, 1981.

On August .19, 1982, the Arceneauxs filed suit against the Courtneys, William Dedon, d/b/a Bruce-Terminix Company, Terminix International, Inc. and Maryland Casualty Company for damages due to termite infestation. An exception of prescription filed on behalf of the Courtneys was sustained by the trial court.

On appeal plaintiffs argue that the trial court erred in sustaining the exception of prescription.

The issues presented on appeal are: (1) whether plaintiffs’ petition alleges an action for breach of contract in addition to an action for breach of warranty; and (2) whether plaintiffs should be allowed an opportunity to amend their petition to allege bad faith on the action for breach of warranty.

Claim for Breach of Contract

Plaintiffs argue that the trial court erred in failing to recognize that their petition states not only a cause of action for a breach of warranty based on the contract of sale, but that it also states a cause of action for breach of contract based on the March 17, 1978, purchase agreement. Plaintiffs further argue that because the prescriptive period for breach of contract is ten years, the trial court erred in sustaining the exception of prescription as to this cause of action.

The allegations and prayer of the petition determine the true nature of the action and the applicable prescriptive period. Aetna Life & Cas. Co. v. Dotson, 346 So.2d 762 (La.App. 1st Cir.1977), writ denied, 349 So.2d 1272 (La.1977); American Insurance Co. v. Hartford Acc. & Indem. Co., 198 So.2d 757 (La.App. 1st Cir.1966), application not considered, 250 La. 735, 199 So.2d 179 (La. 1967).

Plaintiffs’ petition alleges the following:

“5.
On March 17, 1978 BUYERS and SELLERS entered into an Agreement to Purchase, a copy of which is attached hereto and made a part hereof ...
6.
Under the terms and conditions of the above stated Agreement to Purchase, SELLERS agreed that if termite damage or infestation existed in the property at the time of the sale that SELLERS would have the privilege of repairing same at their expense.
10.
Subsequent to the above stated sale, on or about September 18, 1981, BUYERS discovered for the first time active termite infestation and extensive property damage to the property which had been caused by termites, and which had existed prior to and at the time of the sale.”

The pleadings quoted above allege the existence of a contract (i.e. purchase agreement) between the parties, the terms of the contract, and a breach of the contract by the Courtneys. These allegations are sufficient to state a cause of action for breach of contract based on the purchase agreement. The applicable prescriptive period for such an action is ten years. LSA-C.C. art. 3544. Therefore, we find that the trial court erred in sustaining the exception of prescription as to the breach of contract action.

Amendment of Petition on Claim for Redhibition

The second cause of action asserted by plaintiffs is for breach of warranty of the act of sale. Plaintiffs argue that the trial court erred when it did not allow them an opportunity to amend their petition to allege bad faith on the part of the Court-neys'. Plaintiffs further argue that if allowed to amend their petition to allege bad faith, the applicable prescriptive period would begin to run from the date of discovery of termite infestation (September 18, 1981), rather than the date of the sale (May 9, 1978), and their claim in redhibition would not have prescribed.

In general, a redhibitory action prescribes one year from the date of the sale, unless the seller had knowledge of the vice and neglected to declare it to the purchaser. LSA-C.C. art. 2534. If the seller has knowledge of the defect and fails to declare it, the one year period for filing the redhibi-tory action then runs from the date of discovery of the vice by the purchaser. LSA-C.C. art. 2546; Smith v. Cupples Real Estate, Inc., 412 So.2d 682 (La.App. 2nd Cir.1982).

In this case more than one year elapsed between the date of purchase of the house and the date suit was filed. Therefore, on the face of the petition the claim for redhi-bition had prescribed. However, when a peremptory exception of prescription is sustained, the party whose action is thereby dismissed must be given an opportunity to amend the petition, if the grounds supporting the exception can be removed by amendment. If the grounds of objection cannot be so removed, or if the party cast fails to comply with an order to amend, the action should be dismissed. LSA-C.C.P. art. 934. H & H Boat Rental, Inc. v. Vidos, 225 So.2d 308 (La.App. 1st Cir.1969).

We find that the trial court should have granted plaintiffs a reasonable opportunity to amend their petition to allege bad faith, and, if possible, to cure the defect in question.

For the above and foregoing reasons, it is ordered that the judgment sustaining the exception of prescription as to the breach of contract action is reversed. In addition, the case is remanded to the trial court to afford plaintiffs the opportunity to amend their petition. Costs are to be paid by defendant-appellees, Herbert and Vera Courtney.

REVERSED in part; REMANDED.


text:
    CITY NATIONAL BANK and W.T. Brown, et al. v. Edward W. ANLAGE, et al.
    No. 83 CA 0483.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Charles A. Schutte, Jr., Baton Rouge, for plaintiffs-defendants-in-reconvention-appel-lees City Nat. Bank, W.T. Brown, J. Patrick Smith and Edward Cooper.
    Michael W. McKay, Baton Rouge, for defendant, third party plaintiff, plaintiff-in-reconvention-appellant Edward W. Anlage.
    Ralph Brewer, Baton Rouge, for defendant-appellee George E. Desser.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Edward W. Anlage appeals from a judgment dismissing City National Bank’s suit without prejudice. We affirm.

City National Bank (CNB) filed suit against Anlage and George E. Dresser alleging that Anlage and Dresser were liable as endorsers on three promissory notes payable to CNB. Joining CNB as co-plaintiffs were J. Patrick Smith, Edward Cooper, and William T. Brown, other endorsers of the notes who had previously entered into a settlement with CNB.

Anlage answered with a general denial of the allegations of the petition. Additionally, Anlage filed a reconventional demand against Smith, Cooper, and Brown and a third party demand against Rosie’s Pizza of Bon Marche, Inc., the maker of the notes.

The original petition was signed by Robert C. Funderburk, Jr., and G.T. Owen, III as attorneys for CNB and the other plaintiffs. Following Anlage’s answer, Funder-burk withdrew as counsel of record for CNB but remained as counsel of record for the other plaintiffs. Owen remained as counsel of record for CNB.

CNB then filed a motion to dismiss its suit without prejudice. The motion was granted by the trial court without notice to Anlage or his attorney.

In this appeal, Anlage contends that the trial court erred in dismissing CNB’s suit without prejudice in the absence of notice and a hearing.

We find no merit to this contention. LSA-C.C.P. Article 1671 provides:

“A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.”

Because Anlage made a general appearance, the second sentence of Article 1671 is applicable. Official Comment (b) under this Article states that a plaintiff’s right to dismiss after an appearance rests within the sound discretion of the trial court. However, the trial court may not dismiss a suit without prejudice if substantive rights acquired by the defendant would thereby be lost or if the dismissal would deprive the defendant of a just defense. Rourke v. Coursey, 338 So.2d 1197 (La.App. 3d Cir. 1976).

Anlage contends that he was entitled to a hearing prior to the judgment of dismissal so that he could present evidence of substantive rights he acquired against some of the plaintiffs and any just defenses he might have. He argues that the dismissal of CNB’s suit had the effect of dismissing the entire suit. This argument is clearly without merit. LSA-C.C.P. Article 1039 states:

“If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.”

Under this provision, Anlage’s reconven-tional and third party demands remain unaffected by the judgment dismissing CNB’s main demand. Further, the judgment of dismissal could not affect the claims of CNB’s co-plaintiffs since the motion to dismiss was made by CNB's attorney and named only CNB.

Anlage has also failed to show how the dismissal of CNB’s suit deprived him of any substantive rights or just defenses against CNB. A review of the pleadings shows that Anlage’s answer to CNB’s claim consisted only of a general denial of the allegations that he was liable as an endorser on the notes. Anlage raised no affirmative defenses against CNB nor did he make CNB a defendant in the reconven-tional or third party demands. We fail to see the necessity of holding a hearing to permit Anlage to present evidence of substantive rights and just defenses against CNB when none were raised in his answer. We therefore conclude that the trial court did not abuse its discretion in dismissing CNB’s suit without prejudice.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    Mr. & Mrs. L.J. FIDUCCIA v. SHERWOOD NURSERY AND GARDEN CENTER, INC., et al.
    No. 83 CA 0484.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 1, 1984.
    Guy Módica, Baton Rouge, for plaintiff-appellant Mr. & Mrs. L.J. Fiduccia.
    Robert Kleinpeter, Baton Rouge, for defendant, third party defendant-appellee John C. Morgan, American Southern Ins. Co., Eddie Gray.
    Robert Hoover, Baton Rouge, for defendant-third party plaintiff-appellee Sherwood Nursery & Garden-Center, Hartford Acc. & Indem.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for damages for personal injuries.

On March 1, 1979, plaintiffs, Mr. and Mrs. L.J. Fiduccia, went to Sherwood Nursery and Garden Center to purchase some topsoil and cross-ties with which to make a garden. Sherwood Nursery and Garden Center delivered the cross-ties the following day and stacked them near the concrete apron of the driveway in the Fiduccia’s backyard. The nursery, however, was unable to supply their customers with topsoil, but made arrangements with John C. Morgan to have the soil delivered to the Fiduc-cia’s home.

On March 6, 1979, Eddie Gray, driver of Morgan’s dump truck, arrived at the Fiduc-cia home to deliver the topsoil. As agreed between Mrs. Fiduccia and Gray, he would back the dump truck to the spot Mrs. Fi-duccia wanted the soil placed and she would help direct him. Mrs. Fiduccia had expressed concern that Gray might hit or dislodge the gate posts with the side mirrors of his truck. She, therefore, positioned herself at the back of the driveway and walked from one side to the other behind the truck to make certain Gray cleared the gate.

The truck continued to back onto the Fiduccia driveway. When the truck safely cleared the gate, the truck either accelerated or the engine revved up. Believing the truck might back over her, Mrs. Fiduccia stepped off of the driveway and fell over the cross-ties. As a result, Mrs. Fiduccia suffered a dislocated ankle, a torn deltoid, and multiple cuts and bruises.

Plaintiffs filed suit on October 29, 1979, against Sherwood Nursery and Garden Center, Inc. (Sherwood), the seller of the cross-ties; Hartford Accident and Indemnity Insurance Company (Hartford), the liability insurer of Sherwood; John C. Morgan d/b/a John C. Morgan Trucking Company (Morgan), the owner of thé dump truck; American Southern Insurance Company (American Southern), the liability insurer of Morgan; Prudential Property and Casualty Insurance Company (Prudential), plaintiffs’ homeowner insurer; and American Motorists Insurance Company (American Motorists), plaintiffs’ uninsured automobile insurer.

After trial on the merits, the trial court rendered judgment in favor of defendants and against plaintiffs. The court found that while Gray was negligent in the operation of his vehicle, Mrs. Fiduccia was con-tributorily negligent barring any recovery. From this judgment, plaintiffs appeal.

Plaintiffs specify the following errors:

(1) The trial court erred in finding that Mrs. Fiduccia was contributorily negligent so as to bar her recovery; and
(2) The trial court erred in not awarding plaintiffs, as general damages, a sum of not less than $50,000, together with an award for all special damages.

ASSIGNMENT OF ERROR NO. 1

Plaintiffs contend that the trial court erred in finding that Mrs. Fiduccia was contributorily negligent so as to bar her recovery. Plaintiffs further reason that under the doctrine of sudden emergency, she is not guilty of negligence.

The Louisiana Supreme Court in Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978) stated:

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying upon contributory negligence has the burden of proving it.
Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence _ [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligent if, by a commonsense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.”

Further, a person is deemed to have seen that which a reasonably prudent observer could have seen or should have seen under the same or similar circumstances. Jackson v. Tri-State Elevator Co., Inc., 401 So.2d 538 (La.App. 3rd Cir.1981).

In finding that Mrs. Fiduccia was contributorily negligent, the trial court found that Mrs. Fiduccia knew the truck driver was going to back up and was, in fact, directing him to do so. The trial judge further reasoned that, as an experienced driver, Mrs. Fiduccia should have known that when she could no longer see Gray in the side mirrors, Gray could not see her either. Additionally, the trial judge found that Mrs. Fiduccia should have known of the location of the cross-ties. The cross-ties had been stacked in her yard, in the spot she designated, for three to four days. The trial judge correctly concluded that Mrs. Fiduccia was contributorily negligent, in that she should not have placed herself behind a backing truck and she should not have stepped into the cross-ties, which she knew were there, and properly denied recovery to her.

Plaintiffs contend Mrs. Fiduccia is not guilty of negligence under the doctrine of sudden emergency.

The doctrine of sudden emergency provides that one who suddenly finds himself in a position of immediate peril, without sufficient time to consider and weigh

all circumstances or find the best means to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method. Bialy v. State, Etc., 414 So.2d 1273 (La.App.3rd Cir.1982), writ denied 417 So.2d 367 (La. 1982). The application of this doctrine, however, requires that the emergency, in which the party claiming the benefit of the doctrine finds himself and which requires him to act, did not come about as a result of his own negligence. Kaplan v. Missouri-Pacific R. Co., 409 So.2d 298 (La.App.3rd Cir.1981).

Plaintiffs strenuously argue that a sudden emergency arose when Gray suddenly accelerated the truck and was the result of his negligence alone. In answer” to the appeal, Gray contends that he was not negligent.

Although Mrs. Fiduccia may have been startled by the noise of the truck or surprised by the nearness of the approaching truck, this was due to her own inattentiveness rather than the negligence of Gray. Therefore, the doctrine of sudden emergency is inapplicable in the present case.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Because of our ruling in the previous assignment of error, we need not consider plaintiffs’ argument on damages.

For the above reasons, the judgment of the trial court is affirmed at plaintiffs' costs.

AFFIRMED.

      . Plaintiffs dismissed their suit against Prudential and American Motorists and settled their claim with Sherwood and Hartford.

      . Defendant in brief argues that he was not negligent in the operation of his vehicle. Defendant, however, did not appeal the finding of the trial court. Furthermore, because of our ruling on the inapplicability of the doctrine of sudden emergency, the outcome of the case is not affected.


text:
    J & M SALES AND SERVICE, INC. v. ROADRUNNER TRUCK STOP, INC., William Juneau and Alfred M. Anderson.
    No. 83-CA-0486.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Clinton Hyatt, Jr., Hyatt & Schmolke, Baton Rouge, for plaintiff J & M Sales & Service, Inc. appellee.
    Ralph Tureau, Tureau & Mire, Gonzales, for defendants Roadrunner Truck Stop, Inc. and William Juneau appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Roadrunner Truck Stop, Inc., and William Juneau suspensively appeal a trial court judgment condemning them to pay $24,409.97 plus interest and all costs and maintaining a writ of sequestration with recognition of plaintiffs privilege over certain property. We affirm as amended.

The record reveals that on January 6, 1981, plaintiff, J & M Sales and Service, Inc., through its president, James F. Harrison, and in the presence of a witness, John J. Bryan, sold William Juneau and his admittedly non-existent corporation, Roadrunner Truck Stop, Inc., $20,691.77 worth of truck repair equipment.

The record further reveals that Juneau paid a $2,000.00 deposit which, although termed earnest money, was clearly non-refundable. Juneau was also informed that if the equipment were returned, there would be freight charges as well as a restocking or return fee.

The equipment was delivered to Juneau and was accepted at his premises and on his behalf by one Alfred M. Anderson, an independent tire repairman who, although not in Juneau’s employ, nevertheless worked out of Juneau’s place of business. Juneau admitted to knowing of the delivery and custody of the equipment. At no time prior to delivery did Juneau ever attempt to withdraw from the sale.

Other than the initial $2,000.00, Juneau paid nothing despite numerous calls on behalf of plaintiff. Eventually, plaintiff brought suit for the balance due of $18,-691.77, for $718.20 in freight charges, and for attorney fees, interest and costs. Plaintiff also sought and was granted a writ of sequestration and most, but not all, of the property sold to Juneau was located and seized.

Following trial, judgment was signed awarding plaintiff $19,409.97 for the equipment and freight charges, $5,000.00 in attorney fees, interest and all costs. In addition, the writ of sequestration was maintained recognizing plaintiff’s privilege. This appeal followed.

Initially, we note that plaintiff sued and took a preliminary default against Alfred M. Anderson. No further mention of Anderson appears and the signed judgment is silent as to plaintiffs claim against him. Pursuant to LSA-C.C.P. Art. 927, we note, on our own motion, that plaintiff had no right of action against Anderson, a wrong party defendant, and dismiss the claim as to him.

Appellants urge that the trial court erred in:

1. finding there was a valid sale;
2. enforcing the contract rather than permitting plaintiff to only retain the $2,000.00 in earnest money;
3. awarding plaintiff both the equipment and full sale price without credit for the $2,000.00 initially paid;
4. awarding attorney fees;
5. finding delivery was made; and
6. finding the equipment delivered was the equipment on the invoice.

The trial court found there was a valid sale, that delivery was made, and that the equipment delivered, much but not all of which was recovered, was the equipment listed on the invoice. We agree. Furthermore, it is obvious that defendants were credited with the $2,000.00 down payment. The full price of $20,691.77 plus $718.20 in freight charges, less the $2,000.00 paid equals $19,409.97, the amount for which defendants were cast.

Even if defendants had the option of withdrawing from the sale by forfeiture of the $2,000.00 deposit, which is questionable, defendants made no attempt to do so but accepted delivery, held the equipment for several months, and refused to return it without prior payment of the $2,000.00.

LSA-C.C.P. Art. 3511 provides:

“A creditor who seizes property under a writ of attachment or of sequestration acquires a privilege from the time of seizure if judgment is rendered maintaining the attachment or sequestration.”

Clearly, the trial court did not award plaintiff both the equipment and sale price but awarded the sale price and simply maintained the sequestration while recognizing plaintiff’s privilege.

Without stating reasons, the trial court awarded plaintiff $5,000.00 in attorney fees. Since no contract provided for same, we presume the award was made on the basis the sale was on open account and subject to LSA-R.S. 9:2781.

Under the law and jurisprudence controlling at the time this sale was made, January 6, 1981, single transactions were not generally considered as establishing open accounts which would entitle one to attorney fees. O.J. Rivero Towing Company v. Coastal Flex Company, Inc., 414 So.2d 1384 (La.App. 4th Cir.1982); Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1st Cir. 1981).

Nothing in the record reflects evidence of other business transactions between the parties, a line of credit to the defendant, or any clear expectation of future dealings. On its face the sale was a one time cash transaction. For that reason, the award of $5,000.00 in attorney fees was improper and must be deleted.

For the foregoing reasons, the judgment appealed from is affirmed except as to the award of attorney fees which is deleted. All costs, both trial and appellate, are to be paid by William Juneau and Roadrunner Truck Stop, Inc.

AFFIRMED AS AMENDED.


author: PONDER, Judge.

text:
    Kenneth W. DEALEY, et al. v. STATE of Louisiana, et al.
    No. 83 CA 0511.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    M.J. Le Gardeur, Jr., Covington, for plaintiffs, appellants.
    William T. Kivett, Baton Rouge, for defendants, appellees.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiffs appealed from the judgment of the trial court dismissing their suit against the State of Louisiana, through the Department of Transportation and Development (Department), for damages resulting from the death of the wife of one plaintiff and mother of the other plaintiffs.

The issues are: (1) whether the trial court erred in finding no liability on the part of the Department; (2) whether the decedent's fault caused the accident and, if so, whether wholly or partly; and (3) the effect on plaintiffs’ recovery of damages.

We affirm.

Plaintiffs filed suit for wrongful death against the Department, on two theories of liability: strict liability under LSA-C.C. art. 2317 and ordinary negligence under LSA-C.C. art. 2315. The trial court ruled in the Department’s favor, concluding that the Department was not negligent and that the negligence of the decedent in failing to stop at the stop sign caused the accident. He did not specifically address plaintiffs’ theory of strict liability.

Sharp Road, a rural two-lane road in St. Tammany Parish, is intersected only by residential driveways. The land on both sides of the road is wooded. The day was clear and sunny, and the road was dry. For 1000 to 1500 feet west of the stop sign, Sharp Road is straight, level and without obstruction. The stop sign at the intersection with Louisiana Highway 59 was the usual octagonal red and white with a diameter of thirty inches. Although at the time of the accident the face of the sign was marked by spray paint, the legend “stop” was clearly legible. There were no posted speed limit signs on the road.

On March 28, 1981, the decedent, driving east on Sharp Road, failed to stop before entering the intersection. She collided with another vehicle and was killed.

Appellants contend that the trial court erred in not finding the Department strictly liable or liable under C.C. art. 2315, and in finding that the decedent’s death was the result of her negligence alone.

The record contains disputed testimony, both factual and opinion. The witnesses expressed different conclusions as to the distance from which the stop sign could be seen and recognized as such, the effect of the rural surroundings, the effect of the existence of a road beyond Highway 59, the effect of the sunlight at 10:30 A.M., and the reputation of the intersection as to danger. We have reviewed this evidence and find both that the decision has sufficient support in the record and there is no error in the conclusion that the accident resulted from decedent’s negligence alone.

In determining whether the Department was at fault under either negligence theory or strict liability, our analysis is, initially, substantially the same:

“The judicial process involved in deciding whether a risk is unreasonable under Article 2317 is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem, Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), and in deciding the scope of duty or legal cause under the duty/risk analysis. Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Green, The Causal Relation Issue, 60 Mich.L.Rev. 543, 563 (1962). This is not because strict liability under Article 2317 is equivalent to liability for negligence, but because in both delictual areas the judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considera-tions_” Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983).

The trial court must have concluded that, as posted at the time of the accident, the intersection did not pose an unreasonable risk of injury to an eastbound motorist. Therefore, there is no strict liability.

For these reasons, the judgment is affirmed at appellants’ cost.

AFFIRMED.

      . In addition, plaintiffs sued the Parish of St. Tammany and its liability insurer, but settled with those defendants prior to trial.


text:
    Virginia Bell DAIGLE v. Richard John DAIGLE.
    No. 83 CA 0518.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Alvis J. Roche, Lake Charles, for plaintiff and appellant.
    George J. Larke, Jr., Houma, for defendant and appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Plaintiff appeals from a judgment reducing alimony and child support from $675.00 to $250.00 per month.

Virginia Bell Daigle and Richard John Daigle were divorced on August 2, 1977. Mrs. Daigle was awarded custody of a minor child and a total of $675.00 per month as alimony and child support.

On January 28, 1983, Mr. Daigle petitioned the court to have the monthly alimony and child support payments reduced. Mrs. Daigle filed an answer and a rule for past due alimony and child support in the amount of $2700.00.

The trial court rendered judgment reducing the original award of $675.00 to $250.00 ($100.00 for alimony and $150.00 for child support) and awarding Mrs. Daigle $2475.00 for past due alimony and child support. Mrs. Daigle has appealed.

Appellant contends that the trial court erred in reducing the original award made to her in light of (1) Mr. Daigle’s testimony concerning a substantial income for 1982, and (2) the jurisprudence which holds that one cannot avoid payment of alimony and child support by incurring substantial post-separation debts.

Mr. Daigle testified that at the time of the original award of $675.00 per month, he owned and operated a tugboat and that his income was $3800.00 per month. Since that time, his business has suffered a serious reversal and he has been unable to operate at a profit. In addition, Mr. Daigle testified that he was involved in an automobile accident, underwent surgery, and has been unable to work since that time.

In alimony and child support matters, the litigant requesting an adjustment in a prior award must prove a change in the financial condition of either one of the parties. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir.1975), writ refused, 310 So.2d 844 (La.1975), amended and affirmed, 323 So.2d 513 (La.App. 4th Cir. 1975).

In the instant case, Mr. Daigle introduced evidence of numerous and substantial debts, and he testified that his only source of revenue was $400.00 per month which was earned by his second wife. It is clear that Mr. Daigle has proven a change in his financial condition.

Appellant argues that Mr. Daigle’s substantial income for 1982 mandates a reversal of the reduction ordered by the trial court. Mr. Daigle testified, and the evidence substantiates his testimony, that he was unable to pay the court-ordered support in the latter part of 1982 because of serious financial setbacks. In January of 1983, he petitioned for a reduction in the payments. It is his current financial position and not his previous income which is determinative of whether or not a reduction is warranted. Appellant’s argument is without merit.

Appellant cites Renfroe v. Renfroe, 428 So.2d 875 (La.App. 1st Cir. 1983) in support of her contention that Mr. Daigle cannot avoid the payment of alimony and child support by incurring substantial post-separation debts. In the instant ease Mr. Dai-gle’s debts were the result of his efforts to keep his business operating. We do not believe the debts were an attempt on his part to avoid his support obligations and we find no merit in this argument.

Lastly, appellant argues that the trial court erred in awarding only $2475.00 of the $2700.00 she alleges is due for past due alimony and child support. Appellant contends that she is entitled to $675.00 for each of the four months for which alimony and child support had not been paid prior to the rendition of the judgment in the instant case. Appellant reasons that the support payments were due and payable on the first of each month, and therefore, Mr. Daigle owes $2700.00.

The trial court rendered judgment on February 18, 1983, reducing alimony and child support, and making it payable on the 18th of each month. In addition, the trial court awarded, as past due alimony and child support, $2025.00 for three full months and $450.00 for February 1st through the 18th. We have carefully reviewed the computations made by the trial court and find no merit in appellant’s argument.

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

AFFIRMED.

      . Mr. Daigle testified that in 1982 the gross income for his business was approximately $90,-000.00 and of this $90,000.00, his personal income was approximately $22,000.00.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Bobbie Harvey v. Geraldine SMITH.
    No. 83 CA 0519.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Robert J. Black, Bogalusa, for plaintiff-appellee.
    Lewis V. Murray, III, Bogalusa, for defendant-appellant.

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

Defendant and plaintiff-in-reconvention appealed the judgment dismissing her re-conventional demand for damages on an exception of prescription.

Two issues are presented: 1) whether appellant’s action has prescribed, and 2) if it has prescribed, whether the appellees can be precluded from raising prescriptiqn on the grounds of equitable estoppel.

We affirm.

This litigation arose from an automobile accident on November 15, 1980. Appellees, Bobbie Harvey and her collision insurer, State Farm, filed suit on November 3, 1981 for recovery of property damages allegedly caused by the negligence of the appellant, Geraldine Smith. The latter was served on November 6, 1981 and was granted an extension of time on December 8, 1981, until January 8, 1982, in which to respond.

On March 12, 1982 appellant answered appellees’ petition and asserted, both individually and on behalf of her minor child, a reconventional demand for damages. In response, appellees filed an exception of prescription which appellant opposed on the grounds that appellees were barred from raising prescription by the doctrine of equitable estoppel. After a hearing on the exception, the trial judge ruled in favor of the appellees, sustaining the exception of prescription and dismissing appellant’s re-conventional demand.

Appellant complains that the trial judge erred in not finding that appellees were estopped from raising prescription as a bar to her action, on the grounds that certain conduct and misrepresentations by appel-lees’ counsel, upon which her attorney justifiably relied, persuaded her not to file suit.

Appellant’s action, being one in tort, must have been instituted within one year of the commission of the offense. La.C.C. art. 3492. La.C.C.P. art. 1067 provides one exception which is applicable here:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand...”

Appellant failed to file reconventional demand within a year of the offense or within the ninety-day period provided by statute. Even assuming that the thirty-day extension in which to respond granted to appellant served to extend this period to one hundred twenty days, appellant failed to file her reconventional demand within that period.

Appellant argues that this ninety-day “grace” period was suspended at some point by the fraudulent conduct or misrepresentations of appellees’ counsel, which persuaded appellant to believe that she need not file suit because a settlement would be worked out to her satisfaction. Assuming, arguendo, that the doctrine of equitable estoppel can apply in these circumstances, we cannot say that the trial court’s conclusion was manifestly erroneous.

The essential elements of the doctrine of equitable estoppel include proof of fraudulent or misrepresentative conduct by the party asserting prescription, upon which the complaining party justifiably relied to his detriment. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); Tassin v. Allstate Insurance Co., 310 So.2d 680 (La. App. 4th Cir.1975), writ refused 313 So.2d 836 (La.1975).

Appellant’s attorney, Mr. Murray, testified that shortly after his client was served with appellees’ petition he spoke with ap-pellees’ attorney, Mr. Black, informing the latter that he would be representing the appellant and that most likely he would be filing a reconventional demand for damages. Thereafter, on December 8, 1981, Murray filed a motion for extension of time to plead. After the motion was granted, but prior to its expiration on January 8, 1982, Murray met with Black in the latter’s office.

Murray stated that he showed Black the prepared pleadings and asked if he needed to file them at that time. Black indicated his desire to settle but repeated that he had to receive a response from State Farm before settling. Thereafter, there were “numerous calls and visits” between the attorneys, and throughout, Black kept informing Murray that he had not yet received a response from State Farm. Shortly after March 3, 1982, Murray received a letter from Black informing him that he and State Farm had concluded that their client was without fault and that Murray would have to take whatever action he deemed necessary. On cross, Murray admitted that opposing counsel never gave him a specific extension of time to respond.

Appellees’ counsel, Mr. Black, admitted that he and Murray discussed appellant’s possible claim numerous times. He admitted telling Murray that they would try to settle the case; however, he testified that he told Murray repeatedly that he could not settle without State Farm’s agreement. He did not recall being shown appellant’s prepared pleadings; he did not recall asking Murray to refrain from filing his claim.

In his reasons for judgment, the trial judge did not specifically refer to appellant’s argument for the application of equitable estoppel; he cited only La.C.C. art. 3536 (now 3492) and La.C.C.P. art. 1067. His conclusion, of necessity, however, required a finding that appellant had failed to show sufficiently compelling facts to prove the applicability of estoppel in this instance. The record supports the trial court’s finding. We cannot say his decision was manifestly erroneous.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Appellant's minor son was a passenger in her vehicle at the time of the auto accident. Although assertion of his claim as a reconventional demand was improper because he was not a named defendant in the original petition, the court may consider it as an intervention. Texas Gas Transmission Corp. v. Gagnard, 223 So.2d 233 (La.App. 3rd Cir.1969).

      . Appellant also joined in her reconventional demand appellee Harvey's major daughter, who was driving the Harvey vehicle involved in the accident. We note that she did not join the appellees in raising the exception of prescription.

      .La.C.C.P. art. 1067 is not itself a prescriptive statute. Rather, it is an exemption statute, which during its ninety-day period exempts any incidental demand from any applicable prescriptive statute whose prescriptive period would accrue during that ninety-day period. Smith v. Hartford Accident and Indemnity Co., 399 So.2d 1193 (La.App. 3rd Cir.1981), writ denied 406 So.2d 604 (La.1981); Kelly v. La. Stadium & Exposition District, 380 So.2d 669 (La. App. 4th Cir.1980).


author: SAVOIE, Judge.

text:
    Mello B. LEVRON, et al. v. Ledon BONIN.
    No. 83 CA 0532.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Irving J. Warshauer, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiffs-appellants Mello B. Levron, individually and as natural tutrix of her minor child, Heather M. Levron.
    Keith M. Whipple, Atty. at Law, Houma, for defendant-appellee Ledon Bonin.
    Gerard B. Wattigny of Armentor & Wat-tigny, New Iberia, for defendant-appellee Osee Monot.
    Laurence E. Larmann, Hailey, McNamara, McNamara & Hall, Metairie, for defendant-appellee Marsh Equipment Co., Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant-American Mutual Liability Insurance Company (American), as the alleged insurer of defendant-Swamp Buggies, Inc. (Swamp Buggies), filed an exception of prescription in response to plaintiff's suit for workmen’s compensation benefits or, alternatively, the wrongful death of her husband. The exception having been granted, she appeals.

On August 23, 1980, plaintiff’s husband was crushed by a bulldozer when it suddenly skidded and/or slipped and fell off a flat-bed trailer-truck while he was unloading it. As a result of these injuries, he died.

Plaintiff filed suit against defendant, Le-don Bonin, on March 17, 1981, for workmen’s compensation benefits as well as penalties and attorney’s fees as a result of Bonin’s arbitrary and capricious refusal to pay such claim. Alternatively, she asserted a wrongful death action if the court determined that her husband was not an employee of Bonin. On August 21, 1981, plaintiff amended her petition to also include Marsh Equipment Company, Inc. (Marsh) as her husband’s employer. Again, on August 27, 1982, plaintiff amended her petition to include Swamp Buggies as another employer of her husband. On October 26, 1982, plaintiffs petition was again amended to include American as insurer of Marsh and/or Swamp Buggies. American filed a peremptory exception of prescription only as the alleged insurer of Swamp Buggies.

After hearing argument, judgment was rendered in favor of American, maintaining its exception of prescription. A rehearing having been denied, plaintiff appeals the trial court’s judgment. The record does not reflect either written or oral reasons for the trial court’s judgment.

On appeal, plaintiff asserts that the trial court erred in maintaining American’s exception of prescription in that her untimely amended petitions alleging solidarity between Swamp Buggies, American, and Marsh related back to the timely filed petition against Marsh.

The burden of proving an exception of prescription is upon the party pleading it. Pearson v. Hartford Accident & Indemnity Company, 263 So.2d 430 (La.App. 1st Cir.1972), reversed and remanded, 281 So.2d 724 (La.1973). We find from the record, that American has failed to meet its burden.

If American is, in fact, the insurer of Swamp Buggies, prescription was interrupted as to American by plaintiff’s allegations of solidarity between Swamp Buggies and Marsh. Such is true due to the established principles that (1) a suit brought against one of the debtors in solido interrupts prescription as to all debtors, L.S.A.C.C. art. 2097, (2) insurers are solidarily bound with their insureds for actions arising out of their insured’s acts, L.S.A.-R.S. 22:655, (3) one need only allege solidarity in his petition for an untimely petition to relate back to a timely filed petition, Fonten-ot v. O’Brien, 361 So.2d 298 (La.App. 1st Cir.1978), and (4) an action is commenced by the filing of suit; service and citation within the prescription period are unnecessary, L.S.A.-R.S. 9:5801; and Taranto v. Cook, 425 So.2d 1326 (La.App. 4th Cir. 1983).

Herein, plaintiff filed a timely suit against Marsh. Prescription was, therefore, interrupted against Marsh and any other defendant properly sued and bound in solido with it. L.S.A.-C.C. art. 2097. Thereafter, an untimely amended petition was filed against Swamp Buggies, alleging that it was solidarily bound with Marsh. Due to this allegation of solidarity, we find that this amended petition relates back to the timely filing of suit against Marsh. See Fontenot, supra. Moreover, as prescription has not run against Swamp Buggies, L.S.A.-C.C. art. 2097, a fortiori, it has not run against its insurer, American, L.S.A.-R.S. 22:655.

American, citing Palmisano v. United States Fidelity & Guaranty Company, 371 So.2d 386 (La.App. 4th Cir.), writs granted, 374 So.2d 663 (La.1979), appeal dismissed per settlement, 376 So.2d 155 (La.1979), states that Marsh was required to be served within the one year prescriptive period (see L.S.A.-R.S. 23:1209 for workmen’s compensation claims and L.S.A.-C.C. art. 2315 for the wrongful death claim) for the prescriptive period to be interrupted. Such is not the law in Louisiana where the suit was filed in competent court and proper venue. In such instances, prescription is interrupted when the obligee commences the action against the obligor. Under the above described facts and law, we find that the exception was erroneously granted.

If American is not the insurer of Swamp Buggies, the exception of prescription may have been properly maintained. However, we are unable to determine from the record whether or not American is the insurer of Swamp Buggies. Accordingly, we remand this matter back to the trial court for a proper determination of American’s status as to Swamp Buggies and any other proceedings which the trial court deems fit for the proper resolution in this matter. American is to pay all costs of this appeal.

REMANDED.

      . L.S.A.-C.C. art. 3462 provides that:
      “Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prcscription is interrupted only as to a defendant served by process within the prescriptive period.”
      While L.S.A.-C.C. art. 3462 is new, it docs not change the law in effect at the period in question. See L.S.A.-C.C. art. 3518 and L.S.A.-R.S. 9:5801, repealed by Acts 1982, No. 274, § 1, effective January 1, 1983.

      . An appellate court can remand an action for proper consideration, when the record is so incomplete that the court is unable to pronounce definitely on presented issues or where parties have failed, for whatever reason, to produce available evidence material to a proper decision. Bodin v. Bodin, 392 So.2d 759 (La. App. 3rd Cir.1980).


author: SHORTESS, Judge.

text:
    LOUISIANA STATE UNIVERSITY MEDICAL CENTER, SHREVEPORT v. Ernest DICKEY.
    No. 83 CA 0539.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appellant.
    Arax Brumfield, Brumfield & Brumfield, Bossier City, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Ernest Dickey (Dickey) was employed by the Louisiana State University Medical Center, Shreveport (appellant) on December 1, 1981, as a Police Officer II and was serving with permanent status. On that date he was verbally suspended from his position. On December 7, 1981, Colonel William Boden, Director of the University Police Department, and James R. Plai-sanee, Director of Personnel, gave Dickey written notice of his termination effective December 8, 1981. The cause for termination as articulated in the notification was that Dickey attempted to take two pounds of coffee from appellant’s main kitchen on December 1, 1981, at 2:45 a.m. without authorization and in violation of specific written orders forbidding officers to enter the hospital cafeteria after closing.

A full public hearing was held before a Civil Service Commission referee pursuant to La. Const, art. X, § 12(A), as amended by La. Acts 1982, No. 883, and adopted as a constitutional amendment effective October 15, 1982. After hearing the evidence, the referee made written findings of facts and conclusions of law and ordered that Dickey be reinstated to his position with full back pay, emoluments of office, etc. Appellant has brought this appeal and argues that the referee was clearly wrong in ordering Dickey reinstated.

In Williams v. Department of Public Safety, Etc., 415 So.2d 543, 544 (La.App. 1st Cir.1982), this court stated:

The decisions of the Commission are subject to review on any question of law or fact. La. Const. (1974), Art. 10, § 12; Gallardo v. Department of Fire, 399 So.2d 626 (La.App. 4th Cir.1981); Dundy v. Louisiana State University, etc., 394 So.2d 650 (La.App. 1st Cir.1980); Sanders v. Dept. of Health & Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980) writ denied 399 So.2d 602 (La.1981). It is well established that the standard of review in cases on appeal from the Commission is the same standard used in reviewing decisions from the trial courts. The factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous. Department of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981) writ denied 406 So.2d 626 (La.1981); Gallardo, supra; Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir.1981); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976) writ refused 343 So.2d 1078 (La. 1977). Thus, great weight is given to the factual conclusions of the trier of fact. Sanders, supra; Arnold v. New Orleans Police Dept., 383 So.2d 810 (La.App. 4th Cir.1980) writ denied 385 So.2d 274 (La. 1980); Hebert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir.1978).

We have carefully reviewed this entire record and find that the referee’s findings of fact as set forth below are not manifestly erroneous.

FINDINGS OF FACT

1. On April 22, 1980, L.M. Atkins, Acting Chief of the University Police Department, issued a memorandum to all personnel on the 10:00 p.m. to 6:00 a.m. shift. The memorandum states that under no circumstances is any officer to enter the Hospital Cafeteria after the cafeteria is closed for the night.

2. On November 24, 1981, and December 2, 1981, Lois M. Jackson, Director of Nutritional Services, sent memoranda to Colonel Bill Boden, Director of Security, notifying Colonel Boden that packages of coffee were being removed from the Main Kitchen on a regular basis between the hours of 11:00 p.m. and 6:00 a.m. Ms. Jackson requested Colonel Boden’s assistance in maintaining the security of the kitchen.

3. At midnight on December 1, 1981, Colonel Boden and Lt. Colonel Atkins entered the main kitchen to set up a stake out of the area.

4. Between 2:00 a.m. and 2:30 a.m. Colonel Boden and Lt. Colonel Atkins heard someone enter the kitchen area through Ms. Jackson’s office. They observed appellant walk from Ms. Jackson’s office to the area of the refrigerators. They heard two refrigerator doors being opened and closed, then saw appellant walk back into Ms. Jackson’s office. Appellant opened and closed two desk drawers, walked out of the office, unlocked a grey steel cabinet, removed some articles, relocked the cabinet, returned the keys to the desk drawer and started to exit the kitchen area.

5. Colonel Boden and Lt. Colonel Atkins stopped appellant at the door leading out of the kitchen area into the hospital hallway. Appellant first denied that he was carrying anything, then showed two one-pound bags of coffee.

6. Subsequent to Atkins’ memorandum of April 22, 1980, security officers on the 10:00 p.m. to 6:00 a.m. shift continued to enter the Hospital Cafeteria and get packages of coffee at the request of doctors and nurses working on the night shift.

7. Sergeant Eustis Thornhill, shift supervisor on appellant’s shift, had authorized appellant and other officers on the shift to get coffee from the cafeteria when nurses requested it. Sgt. Thorn-hill understood that packages of coffee were kept under the coffee urns on the cafeteria serving lines and expected officers to get coffee from that location. However, testimony established that officers under Sgt. Thornhill’s supervision had occasionally obtained coffee from other locations within the cafeteria-kitchen area. .

8. Sgt. Thornhill received a six-day suspension following the investigation surrounding appellant’s apprehension on the morning of December 2, 1981.

9. Appellant was unable to establish that on December 1, 1981, he was asked to get coffee for medical personnel. However, testimony established that appellant had been asked by medical personnel to get coffee on numerous occasions and that on more than one occasion, appellant had brought two packages of coffee to the Emergency Room medical staff in order to avoid having to make two trips.

10. No evidence was presented to show that appellant intended to remove the coffee for his personal use.

Appellant argues that the referee erred in finding that no evidence was presented to show that Dickey intended to remove the coffee for his own personal use. Boden and his assistant, Louis Atkins, stopped Dickey as he exited the cafeteria. No one will ever know for sure what his destination was. Dickey testified that he got the coffee for nurse Catherine Barron. She testified that she did not ask Dickey to get the coffee for her on the night in question. No other evidence was presented on this point.

Appellant also argues that the referee erred in finding that Dickey’s conduct did not constitute theft because consideration should have been given to his suspicious and guilty conduct when he was apprehended by Boden, his attempt to use perjured testimony, and the manner in which he obtained the coffee from the cafeteria.

The evidence indicates that Barron had asked Dickey on many occasions in the past to get coffee for her. Dickey denied asking Barron to lie. He testified that he asked her what her testimony would be. Dickey also had an explanation for his conduct in the cafeteria before and after being apprehended, which differed from that of Boden and Atkins. The referee obviously attached more weight to Dickey’s version than to the version of appellant’s witnesses.

Again, we must emphasize that our role as an appellate court is not to substitute our judgment for that of the trier of fact but to review its decision and reverse only if we find that the judgment was clearly wrong. In this case we cannot say, based on the totality of the record, that the referee was clearly wrong in ordering Dickey reinstated.

For the above reasons, the decision of the Civil Service Commission’s referee is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Robert S. MacDONALD v. REEVES TRANSPORTATION CO., INC., et al.
    No. 83 CA 0543.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Douglas C. Ellis, Covington, for plaintiff-appellant Robert S. MacDonald.
    Grayson H. Brown, Baton Rouge, for defendant-appellee Travelers Ins. Co. and Reeves Transp. Co. Inc.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee James Carlton Baker.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a suit brought in tort by a truck driver against his employer, Reeves Transportation Co., Inc., a co-employee, James Carlton Baker, and their insurer, Travelers Insurance Company. The trial court maintained the defendants’ motion for summary judgment.

Plaintiff claims that the acts of the defendants constituted an intentional act within the meaning of the exception to the exclusivity of the worker’s compensation act, LSA-R.S. 23:1032. Plaintiff alleges that he was injured when the chain which was being used to tow a broken-down truck broke causing him to lose control of his towing vehicle and resulting in personal injuries to him. The petition then alleges that the co-employee knew that engaging in such activity was substantially certain to result in injury to the plaintiff. The petition then sets out: “The knowledge of defendant Baker of the substantial likelihood of injury to the plaintiff as well as Reeves Transportation’s discouragement of unnecessary expenditures make the decision to have the plaintiff steer the towed vehicle an intentional act.”

Under the Supreme Court definition of “intentional act” in Bazley v. Tortorich, 397 So.2d 475 (La.1981), one must desire the result or know that the consequences are substantially certain to result. The allegations of the petition in the instant case fall far short of alleging material facts constituting an “intentional act” as defined by Bazley. Reed v. Yor-Wil, Inc., 406 So.2d 236 (La.App. 1st Cir.1981), writ denied 410 So.2d 1135 (La.1982).

In light of the recent decisions applying Bazley v. Tortorich, the trial court’s granting of the defendants’ motion for summary judgment was proper. See Citizen v. Theodore Daigle and Brother, Inc., 418 So.2d 598 (La.1982).

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.