author: PONDER, Judge. WATKINS, Judge

text:
    BAKER ENTERPRISES, INC. v. Greg ALLEN d/b/a Allen Office Supplies and Allen, Inc.
    No. 83 CA 0524.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Robert W. Stratton, Baton Rouge, for plaintiff-appellee Baker Enterprises, Inc.
    Thomas J. Frierson, Paul T. Thompson, Baker, for defendant-appellant Greg Allen d/b/a Allen Office Supplies and Allen, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendants appealed the judgment casting them for damages, cost and attorney’s fees for violations of a sublease agreement.

The issues are: the existence of a sublease, admissibility of evidence of negotiations to settle, the propriety of attorney’s fees and the correction of the judgment.

We affirm.

When Danny’s Fashion Center, Inc. ceased doing business, it negotiated with Greg Allen, d/b/a Allen Office Supplies and Allen, Inc., who wanted to sublease the property owned by Baker Enterprises, Inc. The original lease was for a primary term of two years with two options for five years each. It also required lessor’s approval for a sublease. Lessor was willing to allow the sublease for the remainder of the first five years extension, which was then in progress but was unwilling to approve the second five year extension without a renegotiation of the price.

After defendants occupied the premises about sixteen months, they ceased payment and later vacated the premises. Plaintiff sent notice of delinquency to the original lessee. It thereafter took an assignment of the sublease and filed suit against the sublessee. After trial, the trial court gave judgment for seventeen months’ rental less a credit for overage of re-rental, a total of $12,450.00, plus interest and costs and attorney’s fees of ten percent.

Appellants contend that there was never a sublease because they would not agree to an elimination of the second extension period.

The court found otherwise and we agree. The letter regarding the sublease starts with: “This will confirm to you our agreement to sublease ...”. (Emphasis added). Furthermore, A.T. Furr, president of the plaintiff, testified that defendants knew and agreed that the second extension would be subject to renegotiation. There is a note on the letter, which Furr identified as his, to the effect that he had discussed the point with Allen.

Appellant complains of the admission of some testimony about negotiations. Since there was only evidence that negotiations took place, which was recorded before the objection, we doubt that any error occurred. Even if it be error, it is harmless in view of the preponderating evidence.

Appellant complains that he never received written notification of delinquency so as to warrant the award of interest and attorney’s fees. The lease does provide for written notice of delinquency and a grace period thereafter. Another provision, however, allows notice in person, and the original lessee testified he discussed the matter of delinquency with Allen. We find no error.

Finally, appellant complains that the court changed the amount of the judgment from $12,750.00 to $12,450.00 without holding a new trial. The minutes reveal that on the motion for a new trial, the court granted the new trial only insofar as it changed the amount as mentioned above. Thereafter, however, a motion to correct clerical error in the judgment was filed and granted. In view of the fact that the testimony of the $300.00 credit was received on cross-examination by defendants and the correction is in their favor, we find no error.

On February 3, 1984, during the pendency of this appeal, defendants filed a peremptory exception of no cause of action on the bases that plaintiff failed “to allege that defendants were given written notice of their intent to accelerate the lease, seek ten (10%) per cent of the remaining amount due on the lease as attorneys’ fees and also to seek ten (10%) per cent interest on the past due installments from due date until paid;” and “upon the trial of the instant matter, the plaintiff did not show that the defendants were given written notice of their intent to accelerate the lease, seek ten (10%) per cent for the past due lease installments as attorneys’ fees if the same were placed in the hands of an attorney for collection and/or their intention to seek ten (10%) per cent interest on all past due installments from due date until paid.”

Defendants did ask for dismissal of the suit, even though the complaint is only as to the attorneys’ fees and interest, and not the entire claim. The peremptory exception is, therefore, inappropriate under the circumstances. At any rate, the peremptory exception is denied under our finding above that the lease allowed notice in person and that the matter of delinquency had been discussed with Allen.

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

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge

(dissenting).

I am of the opinion that there was never a meeting of the minds between the three parties involved directly or indirectly in the sublease, Baker, Danny’s, and Allen. The letter that furnishes evidence of the sublease was addressed by Allen to Danny’s not to Baker. The sole indication that Baker was a party to the agreement is a handwritten notation affixed to the bottom of the letter by A.T. Furr of Baker that' Allen agreed to the sublease for only one sublease period, that ending September 30, 1982.

Allen conditioned his letter to Danny’s upon Danny's agreeing to exercise on behalf of Allen the second 5-year option in accordance with the terms of the principal lease.

It obviously was never intended by Allen that Baker could condition the sublease on there being no possibility of exercising the second option. That condition, even if it were made known to Allen, which is doubtful, constituted a counteroffer, as it was not set forth in terms of the original sublease letter from Allen to Danny’s. LSA-C.C. art. 1805. The counter-offer was never accepted by Allen.

Hence, Allen leased the property only on a month-to-month basis, there having been no contract between Allen and Baker.

The letter which indicates there was an “agreement to sublease” is the letter from Allen to Danny’s to which Baker was not a party, and the note by A.T. Furr of Baker which is affixed to the bottom of the letter, adverted to above, is purely self-serving and lacking in any concurrence by Allen.

I, therefore, respectfully dissent.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Gordon H. MAGINNIS v. John H. MAGINNIS, Individually and as Executor and Co-Trustee U/W of Ruth H. Maginnis.
    No. 83 CA 0527.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Frederick F. Preaus, New Orleans, for plaintiff, appellant.
    Martha Jumonville, Mandeville, for defendant, appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Gordon H. Maginnis brought the present suit seeking removal of John H. Maginnis, his brother, as trustee of the Gordon H. Maginnis Trust, of which Gordon Maginnis was beneficiary. Gordon also sought damages from his brother John for interest on sums allegedly withheld from the Gordon H. Maginnis Trust. Both parties moved for summary judgment. From summary judgment in favor of John, Gordon, the plaintiff, appeals. We affirm.

Mrs. Ruth Hobson Maginnis died on April 24, 1976, leaving a will that creates three separate trusts, one being the Gordon H. Maginnis Trust, as aforesaid. By un-contradicted affidavit submitted by John on motion for summary judgment, it is asserted that Maunsel Hickey was selected as CPA and attorney for the estate and the Gordon H. Maginnis Trust by the concurrence of both John and Gordon. The legatees were sent into possession in June of 1978 in accordance with a schedule of distribution prepared by Mr. Hickey’s accounting firm. Later, in June of 1979 Mr. Hickey telephoned John H. Maginnis informing him his firm had made an error, which resulted in the Gordon H. Maginnis Trust not receiving a proper sum and in John H. Maginnis receiving too great an amount, by the sum of $16,742.55. The total before tax value of the entire Succession of Ruth H. Maginnis was $468,032.62. Steps were taken by Mr. Hickey to correct the mistake by making an entirely new partition of the entire succession but this work was not completed until October, 1980. At that time, protracted negotiations were conducted between John and Gordon which finally resulted in the payment of the final amount due the Gordon H. Maginnis Trust in May of 1981. No interest was paid on that sum.

Gordon sought the removal of John as trustee for breach of trust, and interest on the amount withheld.

The trust instrument relieved the trustees (one of two being John, who alone is sought to be removed) of all liability for breach of trust except breach of the duty of loyalty. The Trust Code permits the trust instrument to exculpate a trustee from all liability for breach of trust except in breach of trust committed in bad faith, or one committed in breach of the duty of loyalty. LSA-R.S. 9:2206; Oppenheim and Ingram, Trusts, Vol. 11, West’s Civil Law Treatise, Sec. 446. Thus, the exculpatory provision of the trust instrument was fully enforceable.

Clearly, the error in distributing the succession resulted from an accounting error made by Mr. Hickey’s CPA firm, and not through any fraud, bad faith, or breach of the duty of loyalty on the part of John H. Maginnis. Indeed, Mr. Hickey was selected by mutual agreement of John and Gordon. Thus, even if a breach at all was committed by John, which appears doubtful, in view of Gordon’s concurrence in Mr. Hickey’s selection, it was not one for which John H. Maginnis can be held responsible, either in damages, or by removal. LSA-R.S. 9:1789.

Interest that would have accrued to a trust is an item of damages. Bridwell v. Bridwell, 381 So.2d 566 (La.App. 2d Cir. 1980). As John H. Maginnis is not liable to the Gordon H. Maginnis Trust or to Gordon H. Maginnis individually for damages, he cannot be held liable for interest that the Gordon H. Maginnis Trust would have received had the accounting error not been made.

Thus, the trial court acted properly in granting summary judgment in favor of John H. Maginnis dismissing Gordon H. Maginnis’ suit.

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

AFFIRMED.

      . The duty of loyalty is succinctly delineated in LSA-R.S. 9:2082 and Louisiana State Law Institute Comment (c) thereunder.


author: COVINGTON, Judge.

text:
    Marie H. VACCARO, etc., et al. v. ALLGOOD, INC., et al.
    No. 83 CA 0545.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied May 25, 1984.

      Ben L. Guelfo, Baton Rouge, for plaintiff-defendant in intervention-appellant Marie H. Vaccaro, individually and as Succession Representative of the Succ. of Frank M. Vaccaro, Sr., and as Natural Tutrix of her minor child, Vanessa F. Vaccaro; Craig M. Vaccaro; Frank M. Vaccaro Jr.
    Vincent P. Fornias, Baton Rouge, for defendant; defendant in intervention-appel-lee Allgood Inc.
    Paul M. Batiza, New Orleans, for defendant-defendant in intervention-appellee Caterpillar Tractor Co.
    William N. Faller, Baton Rouge, for in-tervenor-appellee Emmette L. Cummings.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a wrongful death action. We have carefully read the record, and find the written reasons of the trial judge, a copy of which is attached, correctly dispose of the determinative factual and legal issues presented by this case.

For the pertinent reasons expressed by the trial judge, which we adopt as our own, the júdgment appealed is affirmed, at the costs of appellants.

AFFIRMED.

MARIE H. VACCARO, ETC., ET AL. VERSUS ALL GOOD, INC., ET AL.

NUMBER 248,628 DIV. “J” 19th JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

JUDGMENT

PAUL B. LANDRY, Judge Pro Tem.

This is a wrongful death action. Plaintiffs are the widow, minor child and two major children of decedent Frank M. Vacca-ro, Sr. (Decedent). For a cause of action, plaintiffs aver that oh November 2, 1980, Decedent committed suicide allegedly due to grief over the death of his son, Brett Henry Vaccaro, who died September 30, 1980, reputedly as the result of negligence on the part of the employees of defendants All Good, Inc., and Caterpillar Tractor Company.

Separate causes of action are asserted as follows: Mrs. Vaccaro (Widow) asks damages for herself for loss of love, support, mental anguish, medical, funeral expenses and pain and suffering endured by Decedent prior to his demise. On behalf of her minor child, Vanessa F. Vaccaro, Widow asks damages for decedent’s pain and suffering, mental anguish of the child, and loss of love and support. Frank M. Vacca-ro, Jr., and Craig M. Vaccaro, majors, seek damages for their father’s pain and suffering, loss of their father’s love and affection, and pain and anguish over his death.

Plaintiffs contend this suit presents a multiple wrongful death action authorized by La.C.C. Article 2315. First, there is survivorship action to recover damages for the death of the son for said decedent’s pain, suffering and losses, if any. Article 2315, above; Underwood v. Gulf Refining Company, 128 La. 968, 55 So. 641 (1911).

Secondly, plaintiffs contend the son’s death gives rise to a wrongful death action by Decedent for Decedent’s own injuries and losses emanating from the son’s death, which cause of action is transmittable to Decedent’s heirs. Plaintiffs argue that since Decedent is allowed recovery for his own injuries and losses over the death of his son, recovery must be allowed to the full extent thereof, including a causally connected suicide, which latter right is also transmittable to Decedent's heirs. Consequently, a cause of action exists in favor of plaintiffs for the death of their husband and father, respectively.

Defendant Caterpillar Tractor Company (Exceptor) has filed a peremptory exception of no cause of action herein in bar of all claims predicated upon the death of Decedent.

Exceptor concedes, however, that the right of the son to sue for his personal injuries, pain, suffering and losses, if any, survives in favor of Decedent and Widow. Exceptor also acknowledges that the right of Decedent to recover for his own personal losses occasioned by the son’s death survives Decedent and such damages, if any, are recoverable to Decedent’s estate. On the other hand, Exceptor vigorously contends that Article 2315 does not allow recovery of damages by anyone for the alleged wrongful death of Decedent.

In oral argument, counsel for plaintiffs abandoned the claims of the children to sue for damages for personal losses due to Decedent’s death. Counsel contends, however, that Widow has a cause of action under 2315 for Decedent’s death because Widow is authorized by 2315 to sue for her son’s death whereas the siblings are not.

La.C.C. Article 2315 pertinently states: “The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; (3) the surviving brothers and sisters of the deceased, or any of them if he left no spouse, child or parent surviving. THE SURVIVORS IN WHOSE FAVOR THIS RIGHT OF ACTION SURVIVES MAY ALSO RECOVER THE DAMAGES WHICH THEY SUSTAINED THROUGH THE WRONGFUL DEATH OF THE DECEASED. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor or in whose favor the right of action survived, is inherited by his legal, instituted or irregular heirs, whether suit has been instituted thereon by the survivor or not.” (Emphasis added).

Plaintiffs allege that Decedent committed suicide because of mental derangement or of delirium induced by grief and emotional distress engendered by the death of his son, injuries for which Decedent could recover and that said injury to Decedent was the direct result of Exceptor’s negligence. Therefore, it is alleged and contended that an unbroken chain of causation exists between the two fatalities, giving rise to an action in favor of Widow against Exceptor and affording Widow a cause of action for her own losses sustained by Decedent’s death. Widow argues that her right of action is a separate right existing in her favor pursuant to 2315, above, notwithstanding Decedent’s suicide and the fact that Decedent was not physically injured by the negligent conduct of the tort-feasor.

It is well settled that for purposes of deciding a peremptory exception of no cause of action, all well pled allegations of the petition must be accepted as true. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App.1981).

Widow’s contention that she is entitled to recover for the death of her husband under these circumstances is based primarily on Underwood v. Gulf Refining Company, 128 La. 968, 55 So. 641 (1911), which, interpreting Article 2315, above, held that one may recover damages for mental pain and suffering resulting from the death of a relative although the survivor himself suffered no personal injury. Widow also relies heavily upon Lynch v. Fisher, 34 So.2d 513 (La.App. 2d Cir.1948).

In Underwood, above, the court traced the history of our jurisprudence as regards recovery of damages by one suffering no personal injury to recover for damages due to mental pain and suffering occasioned by injury to another party. Underwood, above, noted that prior to the advent of the 1884 and 1908 amendments to Article 2315, above, our law recognized no right of recovery for injury to another, but rather protected only the right of persons and property. Hubgh v. N. O. & Car. & R. Co., 6 La.Ann. 495; Hermann v. N. O. & Car. & R. Co., 11 La.Ann. 5.

It is noteworthy that in Underwood, above, the court observed that in the absence of amendment to former C.C. Article 2294 (now 2315), no right of recovery in such cases existed and that the right was conferred only by special legislative amendments to the pertinent article. Quoting Walton v. Booth, 34 La.Ann. 913, Underwood, above, held that the pertinent provision of Article 2315 must be strictly construed.

In support of the argument that causal relationship exists between the accident which injured the son and the death of Decedent, plaintiffs rely upon Lynch v. Fisher, 34 So.2d 513 (La.App. 2d Cir.1948). Lynch, above, involved the claim of a good Samaritan who happened upon an accident and assisted in extricating defendant Gun-ter and Gunter’s wife from Gunter’s wrecked vehicle which had struck defendant’s truck parked on the side of the highway. Plaintiff found a pistol on the floor of the automobile and handed it to Gunter. Due to temporary delirium or derangement produced by the accident, Gunter shot plaintiff in the ankle. Defendant Fisher, whose employee allegedly caused the accident by improperly parking Fisher’s truck on the highway at night, filed an exception of no cause of action to plaintiff’s claim on the ground of lack of causal connection between the alleged improper parking and plaintiff’s injury because the eventual injury to plaintiff was not reasonably foreseeable and there was no breach of duty owed plaintiff.

■ On authority of 19 ALR page 13, the Fisher Court, found the rule of proximate cause applicable to injury to one voluntarily interposing to save a party endangered by negligence of a third person, to be that the negligence of the one creating the initial peril is the proximate cause of the injury to the intervening good Samaritan. Fisher, above, recognized that the shooting, although an intervening cause, would not exonerate the negligent party from liability unless it superseded the original negligence and unless the intervening cause alone produced the injury. The court additionally observed that under ordinary circumstances, the shooting would be deemed a superseding or intervening cause but for the claim that Gunter was temporarily deranged by reason of the shock resulting from the collision.

Adopting Section 455 of the Restatement of the Law of Torts, Lynch, above, held that if, in such cases, the initial negligence produced delirium or insanity of another such as to make the original offender liable for the insanity, the original offender is liable for the harm done by the other to himself while delirious or insane if the delirium or insanity prevents his realizing the nature of his act and the certainty or risk of harm involved therein, or makes it impossible for him to resist an impulse caused by his insanity and which deprives him of the capacity to govern his conduct in accord with reason.

Plaintiffs contend the rule thus announced in Lynch, above, is applicable herein and therefore, if as the petition alleges Decedent was rendered delirious or insane by his grief, Decedent’s death is causally related to the initial fault of Caterpillar and Decedent’s taking his own life would not be deemed an independent superseding cause of his demise, thus giving rise to a cause of action in favor of Widow for his wrongful death.

Exceptor concedes that Article 2315, above, and our jurisprudence interpretative thereof, confers a cause of action upon the persons granted the right to sue for wrongful death, but allows recovery by such parties solely for their own damages sustained as a result of the death, which rights are transferred to their heirs in the event of their death. Exceptor maintains, however, that although the categorized beneficiaries established by Article 2315, above, may recover for their own injuries, the statute does not allow recovery by the heirs of such beneficiaries for injuries which the heirs sustain as a result of the death of the beneficiary.

Exceptor relies upon LaPlace v. Minks, 174 So.2d 895 (La.App. 1st Cir.1965), wherein a father sought damages for his own alleged injuries occasioned by his viewing the body of his daughter that had been mutilated in an accident which caused her death. The father suffered a disabling heart attack the day following the accident. After settling the claim for the daughter’s pain and suffering, the father sought recovery for his own personal injuries and alleged losses due to the death of his child. Defendants filed an exception of no cause of action that was sustained by the trial court. The Court of Appeal affirmed on the ground that our law does not allow recovery of damages for physical injury or economic loss by survivors entitled to sue under 2315, above. The Supreme Court refused writs in LaPlace, above, finding no error of law in the appellate court’s ruling.

To some extent, Exceptor also relies upon Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir. 1961), which dealt with the perplexing problem of allowance of recovery of damages for mental pain and anguish sustained by virtue of injury to another person.

Under our duty-risk concept of liability, it appears that Widow’s claim must be rejected. A careful reading of 2315, above, indicates that the legislature intended that the only parties to whom a duty of care is owed in fatal tort cases are the estate of the decedent (which may recover for decedent’s personal suffering and losses, if any) and those specifically categorized surviving relations or beneficiaries permitted to recover personal losses occasioned by the demise of the tort victim. Since the pertinent article makes no provision for recovery by a 2315 co-beneficiary for the death of a fellow beneficiary (in this instance Widow), allegedly resulting from the death of the tort victim, it can only be presumed the legislature intended no duty was owed to the heirs of the beneficiary for losses which the heirs may have sustained due to the beneficiary’s demise.

This Court is of the view that the question should not be settled upon the basis of the propriety, reasonableness or practicality of those considerations inherent in allowing recovery for mental pain and suffering because of physical injury to another party. It appears that Article 2315 has resolved those issues by granting such recovery to those persons within the categories set forth in the statute.

Likewise, this Court finds that the matter should not be determined on the basis of proximate cause or absence thereof. The amendment to 2315 allowing recovery by survivors was not prompted by a legislative determination that such recovery should be allowed because damages recoverable by survivors for their own losses were proximately caused by the negligence of the tort feasor.

Rather, this Court believes and holds that the issue must be decided in the light of the obvious purely public policy decision which prompted the legislature to enact a limited wrongful death statute to overcome prior jurisprudence which held there could be no recovery in this area. It is evident that the legislature, notwithstanding the reluctance of the courts to award damages for pain and suffering resulting from injury to third parties, and for wrongful death of another, decided there should be a limited class of persons entitled to such recovery.

Although plaintiffs concede that Widow alone should be permitted to recover for Decedent’s death, application of the principle advocated by plaintiffs would lead to what this Court considers absurd, unconscionable results.

If, as plaintiffs contend, Decedent’s demise occasions recoverable claims by Widow either under the proximate cause or duty-risk theory of our rules governing liability, it follows that if Widow committed suicide due to grief over her husband or son, or a combination thereof, Widow’s beneficiaries would have a cause of action for her death. Further, if one of Widow’s beneficiaries followed suit out of grief over the death of the sibling, father or mother, or any combination thereof, the 2315 beneficiaries of said party would in turn have a wrongful death cause of action against the tort feasor. This Court cannot conceive that the legislature intended such a domino or chain reaction effect to emanate from the wrongful death of the tort victim.

Assuming Decedent unsuccessfully attempted suicide because of his delirium and inflicted resulting serious, disabling personal injuries on himself, could it be logically argued that Article 2315 allows him to recover for such injuries inflicted upon himself? This Court believes not. Again, this Court deems the statute was intended to apply only to those instances therein expressly set forth.

This Court is of the opinion the legislature intended that the following rights only arise out of the pertinent provisions of Article 2315: (1) A survivorship action in favor of the estate of the designated beneficiaries to recover for the deceased’s pain and suffering and losses, if any, and; (2) A wrongful death action in favor of those persons specifically authorized to sue for their own losses resulting from the death of the tort victim. It does not include the right of one beneficiary to sue for the death of a co-beneficiary for losses which the surviving beneficiary sustains from the death of his or her fellow beneficiary, notwithstanding causal relationship between the negligence of the tort feasor and the death of the co-beneficiary.

Accordingly, it is ordered, adjudged and decreed, and judgment hereby rendered herein in favor of defendant, Caterpillar Tractor Company, sustaining the exception of no cause of action filed herein on behalf of said Exceptor as to the claims of all plaintiffs herein predicated upon the alleged wrongful death of decedent Frank M. Vaccaro, Sr.

It is further ordered, adjudged and decreed and judgment hereby rendered herein dismissing and rejecting all claims of plaintiffs for damages for the alleged wrongful death of decedent Frank M. Vaccaro, Sr., with prejudice and at plaintiffs’ cost.

      . The assertion of counsel for plaintiffs that there was no abandonment of the claims of the children to sue for damages for personal losses due to Mr. Vaccaro’s death is noted. We recognize that those claims are also at issue herein.


author: CRAIN, Judge.

text:
    UNITED DISTRIBUTORS, INC. v. Franklin REDFERN.
    No. 83 CA 0547.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Sidney A. Cotlar, Herman, Herman & Katz, New Orleans, for plaintiff and appel-lee.
    C.R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant and appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a default judgment rendered by the trial court in favor of plaintiff, United Distributors, Inc., and against defendant, Franklin Redfern.

FACTS

Plaintiff filed this suit against the defendant on January 1, 1983, alleging that the defendant, who had been in the retail furniture business in St. Mary Parish, was indebted to plaintiff for the sum of $27,-251.36 plus interest, costs, and attorney’s fees.

Defendant was personally served with the petition and citation on February 11, 1983. Defendant did not appear and answer the petition and plaintiff consequently entered a preliminary default on March 1, 1983, which was confirmed on March 4, 1983.

In confirming the default, plaintiff submitted as evidence of the claim itemized statements, invoices, and an affidavit of the correctness of the amount allegedly owed. Plaintiff indicates in its brief that Paul Escara, its credit manager, also testified at the hearing. However, neither party requested the clerk to transcribe Es-cara’s testimony or to make a note of the evidence.

On the basis of the evidence submitted, the trial court rendered judgment in plaintiff’s favor for the full amount of the claim, plus $6813.00 for attorney’s fees (25% of the principal and interest due). From that judgment, defendant appeals, listing two assignments of error.

OPEN ACCOUNT

Defendant alleges that the trial court erred in rendering a default judgment solely on the basis of the evidence submitted, because the plaintiff’s claim is not based on a mere open account indebtedness and therefore not properly the object of a default judgment under La.C.C.P. art. 1702. Defendant submits that the goods in question were sold “on consignment”, as alleged in plaintiff’s petition, and argues that a sale on consignment is not the same as a sale on open account for purposes of La.C. C.P. art. 1702. La.C.C.P. art. 1702 provides, in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. (Our Emphasis).

Whether the goods were sold on open account is a determination to be made by the trial court. The trial judge made no written findings of fact or reasons for judgment beyond the recitation in the judgment that it was rendered upon plaintiff “producing to the Court due proof in support of the plaintiff’s demands, the Court considering the law and evidence to be in favor of the plaintiff.” When a default judgment contains such a recitation, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Succession of Rock v. Allstate Life Insurance Company, 340 So.2d 1325 (La.1976).

Prior to the 1983 amendment of La.R.S. 9:2781, there existed no statutory definition of open account, only the provision that it included debts incurred for professional services. In 1983, after this default was confirmed, that statute was amended, broadening the jurisprudential definition of open account under that statute and La.C. C.P. arts. 1702 and 4916. That definition would include the transactions in the present case under the term “open account”. However, at the time this default was confirmed, a determination of whether a course of dealings constituted an open account was made by examining several factors which resulted in a more limited concept of open account than the current definition contained in La.R.S. 9:2781.

In the case of Herb’s Machine Shop, Inc. v. John Mecom Company, 426 So.2d 762, 765-766 (La.App. 3rd Cir.1983), writ denied, 430 So.2d 98 (La.1983), some of the factors to be examined were listed as:

1. Whether there were other business transactions between the parties;
2. Whether a line of credit was extended by one party to the other;
3. Whether there are running or current dealings; and,
4. Whether there are expectations of other dealings.
Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1 Cir.1981); Monlezun v. Fontenot, 379 So.2d 43 (La.App. 3 Cir. 1979).

Certainly the fact alone that the goods were sold on consignment does not preclude these dealings from being on open account. In Goldberg v. Borenstein, 59 So.2d 172 (Orl.1952), where plaintiff sold defendant stamps on consignment, the court found that a default judgment was properly rendered based upon the introduction of evidence sufficient to prove an open account.

There is no requirement that a party confirming a default must have the testimony transcribed or a note made of the evidence introduced. When a judgment has been rendered and no note of evidence has been made, it is incumbent on the party desiring to appeal to secure a narrative in accordance with La.C.C.P. arts. 2130 and 2131. Succession of Rock, 340 So.2d at 1328. This, the defendant failed to do. Not having the benefit of a transcript or narrative of the proceedings, we can only presume that there was sufficient evidence for the trial judge to conclude that this particular arrangement between plaintiff and defendant constituted an open account under La.C.C.P. art. 1702 and accordingly, default judgment was correctly taken, Succession of Rock, 340 So.2d at 1328-1329. The documentary evidence introduced supports a judgment based on an open account.

ATTORNEY’S FEES

We find merit in defendant’s argument that the trial court erred in awarding attorney’s fees under La.R.S. 9:2781. That statute states in pertinent part:

A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. (Our Emphasis).

As was stated in the first assignment of error, we find enough evidence to sustain a conclusion by the trial judge that this was an open account enabling the trial judge to render a default judgment under La.C.C.P. art. 1702. However, the record reflects that the requisites of La.R.S. 9:2781 were not met. Consequently, attorney’s fees were improperly allowed.

In its petition plaintiff alleges it is due attorney fees having met the requirements of La.R.S. 9:2781, by sending the letter attached to the petition. The letter makes demand on defendant for an amount shown on attached “ledger cards”. Thus, we must find that plaintiff attached ledger cards to its demand letter. La.R.S. 9:2781 clearly requires a copy of the invoices accompany the letter. This statute is penal in nature and must be strictly construed. Capital Recovery Assistance, Inc. v. Nelson, 424 So.2d 357 (La.App. 2d Cir.1982). Ledger cards cannot be substituted for copies of invoices. That portion of the judgment assessing attorney fees must be reversed.

For the foregoing reasons, we affirm the judgment of the trial court against the plaintiff in the amount of $27,251.36. We reverse the award of attorney’s fees. All costs are to be paid by the defendant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . La.R.S. 9:2781, as amended in 1983, reads in pertinent part:
      C. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account” shall include debts incurred for professional services, including, but not limited to, legal and medical services.


author: LANIER, Judge.

text:
    Richard LANDRY v. LOUISIANA HOSPITAL SERVICE, INC.
    No. 83 CA 0557.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Daniel J. Nail, Napoleonville, for plaintiff second appellant — devolutive.
    John M. Parker, Baton Rouge, for defendant first appellant — suspensive.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit in contract seeking to recover $9,431.91 for surgical and medical expenses for which coverage is claimed under a policy of insurance. The insured also sought statutory penalties for failure to pay the claim. The insurer answered the suit and asserted a coverage defense. The case was submitted to the district court on a joint stipulation of facts and evidence. The district court rendered judgment in favor of the insured for the amount of the claim with legal interest thereon from date of judicial demand but refused to award statutory penalties. The insurer took a suspensive appeal from the judgment against it, and the insured took a devolu-tive appeal from the judgment rejecting statutory penalties.

FACTS

Louisiana Hospital Service, Inc. (Blue Cross) issued a contract of hospital and surgical insurance to Richard J. Landry effective May 1, 1974. This policy was in full force and effect at all times pertinent to this suit. Because Landry had preexisting high blood pressure, the following rider was made a part of the policy:

IT IS AGREED that the above Contract, including all riders and endorsements, if any, to which this Rider is attached, shall provide no benefits from the above Effective Date for care or treatment rendered to:
Landry, Richard J._ for the following illness(s) and/or condition(s), including conditions resulting therefrom:
Abnormal blood pressure; treatment for and complications therefrom.

On May 13, 1980, Landry was admitted to the Touro Infirmary in New Orleans, Louisiana, for diagnostic testing and treatment. His problems were subsequently diagnosed as (1) benign actively secreting adenoma [tumor] of the left adrenal gland, (2) hyperplasia [enlargement] of the adrenal glands, (3) left side renal artery steno-sis [blockage], (4) hypertension [high blood pressure] secondary to the first three conditions, and (5) diabetes mellitus secondary to hypokalemia [low potassium]. On June 30, 1980, Dr. William Leon performed surgery on Landry and removed his left adrenal gland. Landry was discharged from Touro on July 11, 1980.

Landry was readmitted to Touro on August 11, 1980, for four days to be checked for any residual causes of his hypertension and to evaluate the surgery. He was again hospitalized on April 25, 1981, and remained until May 1, 1981, for these same purposes.

Medical and surgical expenses for treatment of Landry’s illness were stipulated as $9,431.91. Landry submitted a claim to Blue Cross for these expenses. Blue Cross denied the claim based on the coverage exclusion contained in the above-quoted policy rider.

COVERAGE

Blue Cross contends that the district court committed error by finding that the language of the rider was ambiguous and by determining that Blue Cross had insurance coverage for Landry’s medical and surgical expenses. Blue Cross contends that Landry’s treatment was for high blood pressure and the complications therefrom and that the rider excludes coverage for such expenses.

Any exclusion from coverage in an insurance policy must be clear and unmistakeable. If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted. Stewart v. Louisiana Farm Bureau Mutual Insurance Company, 420 So.2d 1217 (La.App. 3rd Cir.1982). The burden is on the insurer to prove the applicability of an exclusionary clause in a policy of insurance. Kling v. Collins, 407 So.2d 478 (La.App. 1st Cir.1981); Barber v. Best, 394 So.2d 779 (La.App. 4th Cir.1981).

Dr. Murrel H. Kaplan, specialist in internal medicine, testified that he first examined Landry on April 14, 1980, on a referral from Dr. Leon Hebert. Landry gave a history of having hypertension for years. Landry’s blood pressure at that time was 240 over 120. Attempts were made to control the blood pressure by medication, but they were unsuccessful, and Landry was admitted to the Touro Infirmary on May 13, 1980. Dr. Kaplan testified that the tumor of the left adrenal gland caused Landry’s blood pressure problem and that since the removal of the tumor Landry’s blood pressure has been controlled satisfactorily by medication. Dr. Kaplan described Landry’s final postoperative condition as mild hypertension. Dr. Kaplan indicated that there was no way to know when the tumor first formed.

Dr. Mario R. McNally, a specialist in endocrinology, diabetes and metabolic disorders, first saw Landry on May 29, 1980, in Touro Infirmary on a referral from Dr. Kaplan. His examination of Landry revealed hypertension with an altered mental status, disorientation and weakness. Dr. McNally ran diagnostic tests on Landry and found a high aldosterone production from the left adrenal gland. The adrenal gland normally produces very low levels of aldosterone, but the tumor caused the excess production. Dr. McNally testified that excess aldosterone production causes hypertension (high blood pressure) and hypo-kalemia (low potassium). Potassium is necessary for muscle function, kidney function and brain function. If a person’s potassium level is down, the whole system suffers. The maintenance of a low potassium level for an extended period of time might provoke a cardiac arrest. Dr. McNally indicated that Landry had one of the most severe manifestations of low potassium and hypertension he had ever seen which was caused by a tumor of the adrenal gland. Either condition, hypertension or hypokale-mia, could be fatal. Surgery was the only viable alternative for relieving Landry’s problems because medication was not successful. The purpose of the surgery was to relieve both conditions.

Dr. Edward O’Brien Comer, a specialist in internal medicine and the Medical Director of Blue Cross, studied Landry’s medical and hospital records and the depositions of Drs. Kaplan and McNally. The record does not reflect that Dr. Comer either examined or treated Landry. Dr. Comer testified that Landry was admitted to Touro for high blood pressure and that the treatment he received there was related to this condition. Landry’s medical records indicated he suffered from prolonged severe hypertension. This was in part evidenced by the 90% occlusion of the main blood vessel leading to the left kidney, blood vessel disease within the kidney and eye grounds hemorrhages. The tumor was not the sole cause of Landry’s hypertension, and his diabetes could also affect this condition. Dr. Comer was of the opinion that there were multiple reasons for the low potassium condition suffered by Landry: (1) taking medication [Hydro Diuril] that would wash the potassium out of the system in the urine; (2) dietary changes; (3) kidney damage; and (4) the adrenal tumor. Landry had a low potassium count prior to his admission to the hospital, and this deficiency was corrected within one week of his admission and was no longer a medical problem. Dr. Comer further testified that the potassium wasting did not affect Landry’s system and was a minor problem. He felt the primary effect of the tumor was the hypertension. Dr. Comer conceded that aldosterone producing tumors have two main effects, hypertension and loss of potassium.

The district court reviewed the medical evidence and reached the following factual conclusions:

A review of the medical evidence in this matter has caused the Court to determine that the treatment, which forms the basis of plaintiff’s claim, was performed for a tumor of the adrenal gland. The tumor caused overproduction of aldoster-one causing plaintiff’s hypertension to be uncontrollable and causing hypokalemia or wastage of potassium, either of which conditions could have caused brain damage or cardiac arrest.
The adenoma (tumor) of the adrenal glad [sic] resulted in (a) hypokalemia, treatment for which is covered under the policy and (b) hypertension, treatment for which defendant alleges is excluded under the policy. The Court is of the opinion that the medical evidence shows the excision of the left adrenal gland was as much for the hypokalemia as for the hypertension.

Because the testimony of the medical doctors was presented by deposition, this court is not bound by the manifest error rule in evaluating that evidence. Gould v. State, Louisiana Department of Corrections, 435 So.2d 540 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983). The district court’s factual conclusions are supported by a preponderance of the evidence. Drs. Kaplan and McNally were Landry’s treating physicians, and Dr. Comer was not. The observations and opinions of a treating physician should be accorded greater weight than those of a physician who did not serve in that capacity. Dobard v. State Farm Insurance Company, 437 So.2d 366 (La.App. 4th Cir.1983); Washington v. Ameron Automotive Centers, 432 So.2d 1193 (La.App. 3rd Cir.1983). Further, Dr. McNally was a specialist in endocrinology, diabetes and metabolic disorders and had special training in the effects of the excess aldosterone production on Landry’s system. Accordingly, we agree with the factual conclusions reached by the district court.

The rider excludes coverage for “care or treatment” for abnormal blood pressure “including conditions resulting therefrom. ..”. The rider does not exclude coverage for care or treatment of hypokale-mia. The tumor caused hypertension and hypokalemia. The hypokalemia was not caused by the hypertension. The rider does not exclude coverage for conditions whose origin is the same medical cause as hypertension. Although the excision of the tumor was a treatment for the hypertension, it was also a treatment for the hypo-kalemia. The rider does not exclude coverage when a covered risk and an uncovered risk are cared for by a common course of treatment. Coverage would only be excluded if the course of treatment was exclusively for hypertension. The judgment of the district court awarding Landry $9,431.91 is affirmed.

INTEREST ON JUDGMENT

Blue Cross contends that the district court committed error by awarding legal interest on the judgment from date of judicial demand and asserts that such interest should only accrue from the date of judgment.

All contractual debts bear interest from the time they become due, unless otherwise stipulated. La.C.C. art. 1938. Where no conventional interest is stipulated, legal (judicial) interest shall be recovered. La.C.C. arts. 1940 and 2924. Article XI(l)(c) of the Blue Cross policy provides that Blue Cross will make payment to its insured “upon receipt of the Subscriber’s claim in a form satisfactory to the Company.” Although the parties stipulated that Landry submitted his claim to Blue Cross, there is no stipulation as to when this occurred. However, Landry only prayed for legal interest from date of judicial demand until paid. For this type of claim, a court may only award legal interest in the judgment as it is prayed for. La.C.C.P. art. 1921; Hoyt v. Hi-Lo Oil Company, 419 So.2d 994 (La.App. 3rd Cir.1982); James, Robinson, Felts & Starnes v. Powell, 303 So.2d 229 (La.App. 2nd Cir.1974). The judgment awarding legal interest from date of judicial demand is affirmed. Doty v. Central Mutual Insurance Company, 186 So.2d 328 (La.App. 3rd Cir.1966), application denied, 249 La. 486, 187 So.2d 451 (1966); Prilleux v. Metropolitan Life Ins. Co., 4 So.2d 768 (La.App.Orl.1941).

The case of Bink v. Blackwell, 432 So.2d 296 (La.App. 5th Cir.1983), cited by Blue Cross to support its position, is not good authority. On suits in contract, legal interest is recoverable from the time the debt becomes due. La.C.C. art. 1938. In suits that are ex delicto, legal interest runs from the date of judicial demand. La.R.S. 13:4203. In Bink v. Blackwell, a pedestrian sued her uninsured motorist carrier for injuries she sustained when struck by a truck. A suit by an insured against his own uninsured motorist carrier is a suit in contract. Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968). The decisions of the Courts of Appeal were divided on whether legal interest on claims by an insured against his uninsured'motorist carrier ran from date of judgment [Bink v. Blackwell; Ainsworth v. Government Employees Insurance Company, 427 So.2d 1220 (La.App. 3rd Cir.1983), modified, 433 So.2d 709 (La.1983); Horstmann v. Drake, 420 So.2d 473 (La. App. 4th Cir.1982); Guidroz v. Tauzin, 413 So.2d 682 (La.App. 3rd Cir.1982) ], or from date of judicial demand [Samanie v. Bourg, 434 So.2d 149 (La.App. 5th Cir. 1983), writ denied, 435 So.2d 445 (La.1983); Probst v. Wroten, 433 So.2d 734 (La.App. 5th Cir.1982); Stroud v. Liberty Mutual Insurance Company, 429 So.2d 492 (La. App. 3rd Cir.1983), writ denied, 437 So.2d 1147 (La.1983); Chiasson v. Whitney, 427 So.2d 470 (La.App. 5th Cir.1983), writs denied, 433 So.2d 179, 180, 183 (La.1983); Brown v. Southern Farm Bureau Insurance Company, 426 So.2d 684 (La.App. 1st Cir.1982); Hebert v. Ordoyne, 388 So.2d 407 (La.App. 1st Cir.1980) ]. The Louisiana Supreme Court appears to have put this dispute to rest in the per curiam opinion rendered in Ainsworth v. Government Employees Insurance Company, 433 So.2d 709 (La.1983), wherein interest was. granted from date of judicial demand. In addition, the language in the policy in the instant case provides for payment upon presentation of a satisfactory proof of loss. This language is considerably different from that used in uninsured motorist coverage.

STATUTORY PENALTIES

Landry contends that the district court committed error by denying his claim for statutory penalties and contends that the denial of his claim by Blue Cross was unreasonable and unjust.

La.R.S. 22:657(A) provides in pertinent part as follows:

All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.... Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court.

The policy of insurance issued by Blue Cross to Landry is a health insurance policy in the purview of La.R.S. 22:657. Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767 (La.1980); Peters v. Life General Security Insurance Company, 400 So.2d 1103 (La.App. 1st Cir.1981), writ denied, 403 So.2d 70 (La.1981). What are “just and reasonable grounds” is a question of fact, and the district court’s findings should not be disturbed unless they are clearly wrong. Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 3rd Cir.1980).

The district court found that Blue Cross refused to pay Landry’s claim based on an interpretation of the rider which was not “unreasonable”. Where an insurer’s interpretation of its policy is reasonable and not contrary to any existing jurisprudence, the denial of a claim is not arbitrary so as to require the imposition of penalties, and the insurer has a right to a judicial determination of the issues. While a court may disagree with the interpretation the insurer places upon its policy, its actions in refusing to pay should not necessarily subject it to the penalty provisions of the statute. Stewart, 420 So.2d at 1220.

Dr. Comer, Blue Cross’ Medical Director, testified that shortly after Landry was admitted to the hospital the medication given him for the hypokalemia corrected his potassium deficiency and it was no longer a serious problem throughout the remainder of his hospitalization. Dr. Comer was also of the opinion that there was no evidence that the potassium loss was significantly connected with Landry’s problems. Further, we have been unable to find any jurisprudence which precisely deals with the question presented to us, that is, does an exclusionary provision apply when the same treatment affects a covered condition (hypokalemia) and also an excluded condition (hypertension)? Because Blue Cross has reasonable factual and legal defenses to this claim, we cannot say that the district court’s ruling is clearly wrong, and it is therefore affirmed.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. Blue Cross is to pay all costs of this appeal.

AFFIRMED.

      . Compare Trico Services Corporation v. Houston General Insurance Co., 414 So.2d 1313 (La. App. 2nd Cir.1982), writ denied, 420 So.2d 165 (La.1982) and La.R.S. 22:657.


author: SHORTESS, Judge.

text:
    TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. D & S OILFIELD RENTAL COMPANY.
    No. 83 CA 0559.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Edmund J. Connely, Houma, for plaintiff and appellant Terrebonne Parish Sales and Use Dept.
    F. Kelleher Riess, Metairie, for defendant and appellee D & S Oilfield Rental Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On September 16, 1982, the Terrebonne Parish Sales and Use Tax Department (Parish) filed three petitions seeking to collect unpaid sales and use taxes from Alvin De-laune, Special, D & S Oilfield Rental Company, and Louisiana Offshore Rentals, Inc. (defendants). It was alleged that defendants, all separate entities owned and/or substantially controlled by Alvin Delaune, had failed to pay the Parish taxes due on various transactions involving the purchasing and leasing of oil field support equipment.

The three petitions were identical except for the places where blanks had been filled in with the appropriate tax, interest, penalty, and total amount due the Parish. Additionally, the dates the alleged tax liability arose differed slightly for each defendant. Otherwise, the petitions stated that they had been filed pursuant to the Parish resolution “adopted on October 14, 1964, under the authority contained in Act No. 500 of the Regular Session of the 1964 Louisiana Legislature.” The allegations in the petitions that the defendants are indebted to the Parish for this tax liability are all claims based upon sections of the Parish resolution. For example, Paragraph III of the petitions states that defendants failed to pay the tax, interest, and penalties, or to file the tax return required “by Section 6.02 of the Resolution.” Paragraph IY states that the Parish proceeded to make an estimate of the taxes due it “in accordance with the provisions of the pertinent Section of the Resolution.” Paragraph VI states that attorney fees are due the Parish from defendant “in accordance with the terms of the Resolution.” Paragraph VII states that “under the authority contained in Section 9.02 of the Resolution, your petitioner is entitled to have a rule issued herein directed to the defendant, ordering it to show cause, [etc.].” However, the record does not contain any part of the “Resolution,” much less its particular sections as referred to in the petitions.

The trial court found that Section 9.02 of the Terrebonne Parish General Sales and Use Tax Ordinance allowed the plaintiff to bring a suit for the taxes and seek an order prohibiting defendants from further pursuit of their businesses until the delinquent amounts were paid, noting that this remedy was “provided by Section 9.02 of the ... Ordinance and patterned after LSA-R.S. 47:314.” The court went on to state that “[s]tate and local tax departments are given an advantage under the law (LSA-R.S. 47:1574 and Section 9.01 of the Terrebonne Parish General Sales and Use Tax Ordinance) of being able to present a prima facie case for delinquent taxes and shifting the burden of proof to the alleged delinquent taxpayer to rebut the claim, if possible.” The trial court then dismissed the claims based upon the Louisiana Sales Tax Law, La.R.S. 47:301-317 (apparently pursuant to the directive of La.Acts 1964, No. 500, § l), as well as the “Parish ordinances” and some jurisprudence. A portion of the claims was dismissed without prejudice, as the trial court concluded that certain items in the audits could be taxable after closer analysis of those transactions. The Parish has appealed. Its brief contains arguments based upon the “Terre-bonne Parish Sales and Use Tax Ordinance.”

Prior to Act 316 of 1958, the only method by which a municipal or parochial ordinance could be proven in court was by a copy duly certified by the official, officer or employee who had custody of it (unless the original record were actually brought to court and properly identified). La.R.S. 13:3711 and 13:3712(A); Brown v. Parish of East Baton Rouge, 126 So.2d 173 (La. App. 1st Cir.1960). Act 316 of 1958 (La. R.S. 13:3712[B]) authorized “courts of record” to take judicial notice of municipal or parochial ordinances “within their re: spective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of said court.” The Parish bases its right to recovery on the Terre-bonne Parish General Sales and Use Tax ordinance adopted on October 14, 1964. We have reviewed the record and find no certified copy of such ordinance therein. La.R.S. 13:3711 has not been complied with.

The transcript and the court minutes do not reflect that the district court took judicial cognizance of the ordinance. There is no allegation or proof that the ordinance has been filed in the district court. Hudson v. City of Baton Rouge, 372 So.2d 1240 (La.App. 1st Cir.1979). Even if the district court noticed the ordinance, for appellate review it is incumbent on the party relying on the ordinance to make a certified copy of it a part of the appellate record. Klohn v. Louisiana Power & Light, 406 So.2d 577 (La.1981). La.R.S. 13:3712(B) has not been complied with. '

Because of this failure of proof by the Parish, there is no evidence of record to show it has the taxing power it claims. La.Act.1964, No. 500, § 2. Without proof of its authority to impose and collect the specified taxes, the Parish cannot prevail.

The appellate court has no power to upset the trial court’s findings based upon appellant’s argument that the trial court violated the rules of court, in the absence of any such rules being made a part of the record on appeal. Martin v. Vapor Honing Company, 144 So.2d 622 (La.App. 4th Cir.1962), overruled on other grounds, Isbell v. Pankratz, 284 So.2d 841 (La.App. 4th Cir.1973). We believe the same holds true when the appellant asks us to overturn the trial court based upon ordinances which we are unable to consider because of appellant’s inadvertance. The judgment of the trial court is therefore affirmed; costs of this appeal are taxed to appellant.

AFFIRMED.

      . La.Acts 1964, No. 500, § 1, was amended by La.Acts 1966, No. 263, § 1, adding the emphasized language. The pertinent parts of both Acts are reproduced here:
      Section 1. Subject to the approval of the qualified electors as hereinafter provided for, the Parish of Terrebonne, Louisiana, through the Terrebonne Parish Police Jury or its successor as the governing authority of such parish, is hereby authorized to levy and collect within such parish a tax of one per cent (1%) upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption of tangible personal property and upon the sale of services, as presently defined in R.S. 47:301 to 47:317, inclusive (hereinafter sometimes referred to as the "tax”). Except where inapplicable or inconsistent with the provisions of this Act, the procedures established by R.S. 47:301 to 47:317, inclusive, and R.S. 47:1561 to 47:1581, inclusive, shall be followed in the imposition, collection and enforcement of the tax so imposed hereunder, and any procedural details necessary to be established to supplement the provisions of said sections and to make said provisions applicable to taxes imposed hereunder shall be fixed by resolution of the Police Jury of the Parish of Terrebonne, Louisiana, or its successor as the governing authority of the parish. The governing authority of the parish may employ such persons, delegate such authority and establish such rules and regulations as may be necessary or incidental for the collection of said tax and all reasonable and necessary costs of collection and administration of the tax shall be paid from the avails or proceeds of the tax. After all reasonable and necessary costs and expenses of administration and collection of said tax have been paid, the remaining proceeds or avails of said tax shall be allocated, dedicated and paid out monthly to the political subdivisions as hereinafter provided.

      Section 2. The resolution levying and imposing such tax shall be adopted by the governing authority of the parish only after the question of the imposition of the tax shall have been approved by a majority of the qualified electors of the parish voting at an election held therein substantially in accordance with the general election laws of the State of Louisiana, except that the election shall be ordered, conducted and notice thereof published by the governing authority of the parish in a manner similar to the procedures set forth in R.S. 39:501 to 39:518, inclusive, but all qualified electors shall be entitled to vote in the election. Voting machines shall be used in the holding of the election and assessed valuation shall not be voted in the election.


text:
    TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. LOUISIANA OFFSHORE RENTALS, INC.
    No. 83 CA 0558.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.
    Edmund J. Connely, Houma, La. for plaintiff and appellant, Terrebonne Parish Sales & Use Tax Dept.
    F. Kelleher Riess, Metairie, for defendant and appellee, La. Offshore Rental, Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

For the reasons assigned in Terrebonne Parish Sales and Use Tax Department v. D & S Oilfield Rental Company, (La.App. 1st Cir.1983), the judgment of the trial court is affirmed, costs of this appeal to be paid by the appellant.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Herbert G. MEARS v. MIDCO LOUISIANA COMPANY. MIDCO LOUISIANA COMPANY v. Herbert G. MEARS d/b/a Mears Sand & Gravel.
    Nos. 83 CA 0560, 83 CA 0561.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Michael W. McKay, Baton Rouge, for Herbert G. Mears.
    Warren E. Byrd, II, Baton Rouge, for Midco Louisiana Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Originally, Herbert G. Mears sued Midco Louisiana Company (Midco) for damages resulting in Midco’s delay in repairing Mears’ dozer. In response thereto, Midco filed a separate suit against Mears, d/b/a Mears Sand & Gravel, on open account, representing the cost of the repairs made to the dozer. These two suits were consolidated for trial.

With respect to the first suit, the trial court awarded Mears $2,000.00 in damages for Midco’s inordinately long delay in repairing the dozer. As to the latter suit, the trial court determined the cost of the overhaul to be $8,000.00 and awarded this sum to Midco. In addition, the trial court awarded Midco attorney's fees in the amount of 25°/° of the principal and interest owed.

Both parties have appealed the award for the transmission repair work. In addition, Midco contends the trial court erred in awarding $2,000.00 for loss of business profits to Mears. Further, Mears assigns as error the trial court’s granting of attorney’s fees on the open account.

I. AWARDS FOR TRANSMISSION REPAIR WORK AND ATTORNEY FEES

At the outset of the trial, Mears stipulated that if the repairs were properly made, then Midco’s demand therefor met all procedural requirements under the open account statute. Therefore, the only question before the trial court with respect to the suit on open account was whether the repairs were properly made.

The record reflects that in September, 1978, Mears’ dozer failed to operate in low gear, and the second and high gears were weak. Further, the dozer would not pull correctly and would overheat. With respect thereto, Robert Mears called Midco about repairing the dozer. He talked with Midco’s shop foreman, Jerry Harris, who advised rebuilding the transmission. The dozer was tendered to Midco for his repair work. The repair work was done and on November 16, Mears picked up the dozer. In mid-January, mechanical problems recurred. Midco was called and it discovered that the charging pump shaft was sheared off. Midco changed the pump at no cost to Mears. Later, in January, the dozer was losing low gear power and would not steer properly. Again, Midco came out and, this time, changed the steering valve. Thereafter, the dozer became inoperable in low gear. Although Midco made several requests for Mears to return the dozer for further investigation of the problem, Mears refused to do so. Neither did Mears take the dozer to any other company for further repairs.

Mears contends that Midco’s repair work was defective and thus, Mears does not have to pay for such work. While it is true that the owner is not required to pay for defective repairs, Wendelken Machine Shop, Inc. v. Dibert, Bancroft & Ross Co., Ltd., 279 So.2d 226, 228 (La.App. 1st Cir. 1973), the burden is on the party alleging defective repairs to prove same by a preponderance of the evidence.

In this instance, the record is devoid of any proof that the recurrence of the low gear failure was caused by defective repairs by Midco. The record reflects only that the problem recurred. Thus, in the absence of any proof that the repair work done by Midco was done in an improper manner and was defective, Midco is entitled to be paid for its work. See Wendelken Machine Shop, Inc., supra.

As previously noted, Mears stipulated the cost of the repair work, if properly done, was the $15,520.81 demanded by Mid-co. By such stipulation, any question as to the amount owed by Mears on the open account was removed from the purview of the trial court. Accordingly, the trial court erred in determining that $8,000.00 was the binding sum for the cost of the overhaul, which cost formed the basis of Midco’s open account suit.

Further, due to Mears’ stipulation that the procedural requirements of L.S. A.-R.S. 9:2781 were met, Mears is liable also for attorney fees. The trial court awarded 25% of the principal and interest owed and we find this award is proper.

II. AWARD OF $2,000.00 TO MEARS

Midco contends the trial court’s award of $2,000.00 for loss of business profits was based purely on speculation. It claims that Mears failed to prove that Midco was delinquent in repairing the dozer and, if it was, that Mears did not prove any business loss as a result thereof. We note that these claims by Midco contradict the trial court’s factual findings.

The trial court found that delay in repairing the dozer was inordinately long under the circumstances and, therefore, unreasonable. In reaching this conclusion, the trial court noted that while no fixed period was set for completion of the repairs, Mid-co was advised of the urgency for the work to be done. Further, the trial court believed that Harris, Midco’s shop foreman, made some assurance to Mears that the repairs would be completed within three to four weeks, excepting some delay for delivery of parts. No such parts delivery delay was found by the court.

Factual findings by the trial court based on its reasonable evaluations of credibility are entitled to great weight and should not be overturned on appeal absent manifest error. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), rehearing denied, Oct. 26, 1973.

In support of the trial court’s findings, we note that Harris testified that he estimated the repair time to be three to four weeks, which is the normal time frame for such work. According to Robert Mears, the dozer was delivered on September 6, 1978. Midco’s invoice indicates that work was not begun until the 22nd and, then, only on the 22nd and 23rd for the month of September. Work was not resumed thereon until October 4th. Although the invoice shows the last work was performed on October 31, Robert and Ray Mears testified the dozer was not released to them until November 16. Even assuming the dozer could have been picked up at the earlier date, Midco would have had the dozer for almost eight weeks. Although Harris mentioned at one point in his testimony that he had ordered parts for the dozer, he did not attribute any delay in repair to this fact.

Further, Robert Mears testified that he informed Midco as to the urgency of the repairs. Although Harris testified to the contrary, it can be inferred by the tremendous amount of overtime that was charged to this job that Midco was aware of this fact. Midco’s service department invoice shows that, beginning on September 23, the second day any work was performed on the dozer, out of a total of over 150 hours charged to the job, the regular hours and the overtime hours were approximately the same.

In light of the above, we find no error in the trial court’s findings and its conclusions that the delay time in repairing the dozer was unreasonable.

As to the issue of damages for delay, L.S.A.-C.C. art. 1930 and 2769 provide:

“1930. Liability for violation of contract “The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”
“2769. Contractor’s liability for noncompliance with contract
“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Therefore, Mears is entitled to damages for Midco’s delay in repairing the dozer. With respect thereto, the trial court stated:

“Insofar as damages to be awarded for breach, Mears presented evidence, showing that production was drastically reduced during the month of October, as well as showing that there were additional labor costs associated with the move of the plant which would not have been incurred had the tractor been available. The testimony does reflect that in October, 1978, there was a drop in production of approximately 500 cubic yards of sand and gravel as compared with the previous year and approximately 6,000 yards below the month of August of the same year which had been a normal production month. Of course, it should be noted that there would have been some drop in production in any event should the repairs on the vehicle have been completed in the promised time. Neither Ray Mears or [nor] his fatehr [sic], Herbert Mears, were able to furnish the court with any estimate of profit earned by the company per cubic yard of production and sales. With regard to the additional labor costs, the figures supplied to the court show a slight increase in wages paid out during the month of October as compared with other comparable periods. While it is impossible to assess an exact amount of the loss experienced by Mears in loss of sales and increased labor costs, the court believes that a fair evaluation of the evidence demonstrates that there was a loss to Mears caused by the three additional weeks of delay in repairing the tractor. The court fixes the sum of $2,000.00 as damages due Mears for this delay.”

We find no error with this award.

We recognize, as did the trial court, that loss of profit is speculative in nature. Almerico v. Highlands Insurance Company, 388 So.2d 1176 (La.App. 4th Cir. 1980). Be that as it may, a great deal of discretion is afforded the trier of fact in making a determination for such an element of damages. Almerico, supra. Further, it is well recognized that where damage (including loss of profits) and liability are certain and quantum is uncertain, courts are nonetheless required to award damages. Folds v. Red Arrow Towbar Sales Company, 378 So.2d 1054 (La. App.2nd Cir.1979).

For the foregoing reasons, the judgment of the trial court is amended in favor of Midco and against Herbert G. Mears, d/b/a Mears Sand & Gravel, to increase the sum to $15,521.81. In all other respects, the judgment of the trial court is affirmed. Costs for this appeal are to be borne equally by the parties.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

      . Midco sued Mears for $15,520.81. $998.70 of this bill was for repairs not related to the transmission and, at trial, admittedly owed by Mears. Therefore, $14,522.11 is the cost of the transmission repair that is in dispute on this appeal.

      . The trial court awarded Midco a total of $8,998.70. Of this amount, $8,000.00 was for the transmission repair work. The other $998.70 was for unrelated repairs, which amount is not in dispute on appeal.

      . L.S.A.-R.S. 9:2781 provides, in pertinent part:
      “A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in -favor of the claimant....

      .The steering valve replacement cost of $998.70 was charged to Mears. The parties admit this problem was not related to the transmission work and that Mears is responsible for this amount. See footnotes 1 and 2.


text:
    Emelda PIERRE v. DEPARTMENT OF NATURAL RESOURCES, OFFICE OF ENVIRONMENTAL AFFAIRS.
    No. 83 CA 0584.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      David Girard, New Orleans Legal Assistance Corp., New Orleans, for appellant.
    Charles D. Patten, III, Dept, of Natural Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Baton Rouge, for Herbert L. Sum-rail.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a decision of the State Civil Service Commission upholding the termination of the appellant, Emelda Pierre, from her position as a Typist Clerk III. Appellant had acquired permanent status.

By letter of dismissal dated December 12, 1980, over the signature of Jerry D. Hill, Undersecretary, appellant was advised that effective at the close of business December 19, 1980, she was being terminated pursuant to Civil Service Rule 12.10. Specifically, the letter of removal states that as of the close of business October 17, 1980, appellant was granted six weeks of maternity leave. She was to return to work on December 1, 1980. The letter recites that as of the date of the letter of removal, appellant had not returned to work as scheduled and had exhausted all her sick leave. The letter recites that on December 11, 1980, appellant spoke to Nancy Ernst, a co-worker, and told her that a letter from her physician was forthcoming recommending that appellant not return to work until March 9, 1981. The letter was received on December 12, 1980. The letter of dismissal further recites that appellant was the only clerical support for the New Orleans Office of the Air Quality Division and therefore, her position had to be filled.

On February 11, 1981, a notice of appeal to the State Civil Service Commission was filed by appellant. On February 25, 1981, counsel for the appellee filed a Request for Summary Disposition alleging the appeal was untimely. On March 13, 1981, appellant filed a brief in opposition to the Request for Summary Disposition arguing that appellant did not receive written notice of the dismissal until February 1, 1981, and her appeal was filed on February 11, 1981, well within the thirty days provided for in Civil Service Rule 13.12.

By opinion filed on November 12, 1982, the Commission ordered the appeal heard on the merits but ordered that all evidence concerning discrimination be excluded because appellant did not plead discrimination with the specificity required by Civil Service Rule 13.11(d).

A public hearing on the merits was held before the Commission in New Orleans on January 18, 1983. Based upon testimony and evidence received, the Commission, in a judgment rendered March 18, 1983, made the following findings of fact and conclusions of law:

FINDINGS OF FACT
Appellant had been employed as a Typist Clerk III, with the Office of Environmental Affairs, Department of Natural Resources, during the year of 1980.
In the month of October, 1980, appellant requested maternity leave from her supervisor, Orey Tanner. At that time, appellant was the only clerical employee in this office. Appellant requested more than six weeks maternity leave. Appellant was advised that an employee could only be granted six weeks maternity leave. Appellant was granted six weeks of maternity leave to begin at the close of business on October 17, 1980, and to end with her return to work on December 1, 1980.
Obviously, extending her leave beyond six weeks was in the forefront of the appellant’s mind, since she had requested longer than six weeks (which request was denied), and also asked her supervisor, Orey Tanner, how she could extend her leave if six weeks was not enough. Tanner told her that any request for an extension must be substantiated by a doctor’s statement to indicate the necessity for any additional leave.
Appellant exhausted her sick leave on November 9, 1980, and was put on annual leave until it was exhausted, and finally was put on leave without pay for the remainder of her six weeks leave period. Appellant had her baby on October 23, 1980. She testified that she went back for her six weeks checkup on December 3, 1980. At that visit at Charity Hospital, appellant secured a slip of paper from a doctor, whose name is illegible, which made some statement which is also mostly illegible. Appellant placed this slip of paper in an envelope with no other notations or comments and mailed it to her office. The postmark on the envelope in which this piece of paper was mailed indicates that appellant had carried this around for approximately a week and only mailed the slip on December 10, 1980. The slip was received in the Division of Air Control on December 12, 1980.
At no point during the pregnancy or prior to December 12, 1980, when the piece of paper had been received in the mail from appellant, had appellant ever called her supervisor or any official with the Department of Natural Resources, to request an extension of the six weeks leave that she had been granted. Appellant made absolutely no effort to fill out a leave request or verbally make a request for leave extension or advise her appointing authority when she would definitely be able to return to work.
On December 12, 1980, the appointing authority dismissed appellant for exhaustion of her sick leave and inability to return to work, and certified that it was necessary to fill her position to the Director of the Department of State Civil Service.
CONCLUSIONS OF LAW
Appellant argued before the Commission that since a temporary employee had been hired to work in the office, then the appellant’s job did not, in fact, need to be filled. The Commission does not agree with this logic. The mere fact that a temporary or emergency employee had to be hired indicates that the job needed to be completed. The Commission has also cracked down on the use of emergency or temporary employment in positions that should be filled by a permanent employee. Since this employee had not reported to duty when she was scheduled to return, had not advised the appointing authority when she would be able to return, and had not requested additional leave, it appears logical that the appointing authority would deem it necessary to make other arrangements for a permanent employee to handle this job function at this office.
Appellant exhibited a notable disinterest in her job. She had requested and had been denied additional leave beyond the six weeks maternity leave before her baby was even born. After the baby was born, assuming six weeks from the date of the baby’s birth, appellant would have been expected to report for duty on December 3, 1982. Instead, appellant not only did not report to work, she did not even correspond with anyone in her office to indicate that she did not intend to come back to work. Her explanation that she had obtained a doctor’s certificate, which she mailed to her place of employment, is completely inadequate. The doctor’s certificate, which she supposedly obtained, was illegible to any average reader. Additionally, she carried this piece of paper for over a week before she even bothered to mail it to the appointing authority, and finally, she was only a few blocks from her place of employment when she went to the doctor’s office for this examination. It seems very logical that she could have called, stopped by, or picked up a leave request [form] to fill out if she intended to follow any normal procedures in requesting additional leave. Instead, she simply did not come back to work, did not contact anyone until the date of the disciplinary action, and did not appear to be following any routine requirements for approval of leave.

Appellant’s dismissal was upheld, and the appeal dismissed. From that decision, appellant appeals. Her only assignment of error is that the Commission committed manifest error in finding that the appointing authority was justified in terminating her under Civil Service Rule 12.10.

Civil Service Rule 12.10 provides as follows:

12.10 Special Provision for Separation of Sick or Disabled Employee.
(a) An employee absent from duty because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave, may be removed by the appointing authority upon certification to the Director by such appointing authority that the interests of the service require that the duties of the position be carried on without further interruption. Such removal shall not disqualify the former employee for noncompetitive reemployment as provided in Rule 8.18.
(b) Notice of such action shall be given pursuant to the provisions of Rule 12.3.

Under this provision an employee may be removed if absent from duty because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave. For practical reasons, it is required that sick leave be used and credited in thirty minute segments. Civil Service Rule 11.13(c). Appellant’s check stub shows she had left .2371 of sick leave. Consequently, under Rule 11.13 requiring at least 30 minutes of sick leave in order to have any credit, appellant had exhausted all sick leave.

Civil Service Rule 12.10 requires that sick leave, not annual leave, be exhausted at the effective date of termination. We agree with the Commission that annual leave cannot be considered in conjunction with sick leave in order to apply Civil Service Rule 12.10(a). Consequently, we conclude appellant had exhausted all sick leave and was subject to termination under the provisions of Civil Service Rule 12.10(a).

Appellant further urges that the Commission’s conclusion that the appointing authority carried its burden of showing sufficient grounds for the removal was erroneous. She contends there is insufficient proof that her termination was necessary in order for the duties of the position to be carried on without further interruption and that such a determination is necessary.

Findings of facts by the Commission are entitled to great weight and will not be disturbed on appeal absent a showing of manifest error. Williams v. Department of Public Safety, Office of State Police, 415 So.2d 543 (La.App. 1st Cir. 1982). We note that appellant was dismissed by the appointing authority “[pursuant to the authority contained in Civil Service Rule 12.10_” Under that rule the appointing authority has the burden of proving that “the interests of the service require that the duties of the position be carried on without further interruption.” Civil Service Rule 12.10(a); Burton v. Department of Highways, 135 So.2d 588 (La. App. 1st Cir.1961). The Commission made no finding whatsoever with reference to the necessity for terminating appellant in order for the duties of the position to be carried on without interruption. The Commission was concerned with what they found to be a failure to properly obtain leave beyond the six weeks originally granted. On the other hand the appointing authority conceded from the outset that they knew appellant desired leave beyond the normal six weeks and that appellant communicated with at least two people in the office with reference to this. Consequently, the findings of the Commission are not relevant to the reason for termination. We must therefore examine the record to determine whether the proof supports appellant’s termination under Civil Service Rule 12.10. We find that it does not.

The record reflects that a temporary employee, Nancy Ernst, performed appellant’s clerical duties while she was on maternity leave. There is no evidence to suggest an impairment or interruption in services due to appellant’s absence.

In Burton, 135 So.2d at 588, a temporary employee had been hired to perform Mr. Burton’s duties while he was absent from work. This court found no evidence in the record showing it was necessary to replace Mr. Burton with another permanent employee rather than allowing the temporary employee to continue until Mr. Burton was able to return. This court then held that Mr. Burton’s dismissal was without valid reason because the appointing authority failed to show that the termination was essential to the efficiency of the public service. Civil Service Rule 12.10 basically codifies Dickson v. Department of Highways, 234 La. 1082, 102 So.2d 464 (1958) and Burton, 135 So.2d at 588.

In Broussard v. Department of Corrections, Louisiana Correctional and Industrial School, 405 So.2d 1219 (La.App. 1st Cir.1981), there was no temporary employee to perform the duties of Ms. Broussard, therefore this court assumed her position was left vacant while she was out and her duties were left unperformed. Consequently, we held that the prolonged absence of Ms. Broussard undoubtedly interfered with the smooth operation of the correctional school and that this fact was self evident and no additional evidence was required.

The record here reveals that at the time of appellant’s termination, Nancy Ernst, an emergency appointee, performed appellant’s duties as well as her own without any problems or interruptions. However, Nancy Ernst was not appointed specifically to replace appellant while she was on leave. Nevertheless, where it is shown that another employee is performing the duties of the employee on leave, the principle of Burton, 135 So.2d at 588, requires that the appointing authority show that appellant’s termination and replacement with a permanent employee were essential to the efficiency of the service.

The only evidence in support of the appointing authority’s contention that appellant’s termination was absolutely necessary is a statement found in appellant’s letter of termination, dated December 12, 1980, stating that since her position serves as the only clerical assistance for the New Orleans office of the Air Quality Control Division, it was essential that her position be filled. Also, the Undersecretary of the Department of Natural Resources, Jerry Hill, in a letter dated December 16, 1980, addressed to George Hamner at the Department of Civil Service asserted that it was essential that appellant’s position be filled in order to insure that there are no interruptions in services provided by the personnel in this area. Failure to fill this position assertedly would cause serious delays in the issuing of permits to industry regarding emissions to the ambient air. However, the testimony of the witnesses at the hearing on January 18, 1983, reveals the opposite.

Gus Von Bodungen, director of the Air Quality Control Division, testified that there were two Typist-Clerk III positions available in appellant’s office at the time of her termination and one of these positions was vacant at that time.

Orey Tanner, appellant’s direct supervisor, testified that he could not remember being without appropriate clerical assistance during this period of time and that his office was typically staffed by one clerical worker.

Appellant testified that Nancy Ernst, who performed the same duties as appellant, was in the hospital for several weeks sometime between July and October 1980, and that while Nancy was out she (appellant) performed the clerical duties of both positions alone.

The record reveals no factual evidence proving that the efficiency of the department was in any way affected by appellant’s temporary absence. Therefore, we hold that termination of appellant was without valid reason and the decision of the Civil Service Commission upholding the termination was manifestly erroneous. Civil Service Rule 12.10(a); Burton, 135 So.2d at 588.

For the foregoing reasons, the decision of the Civil Service Commission is reversed and it is ordered that appellant be reinstated to her position as a Typist Clerk III with permanent classified status as of March 9, 1981, the date she would have been able to return to work. Appellant is to receive back pay from March 9, 1981, along with all ancillary benefits. Appellee is to pay costs of this appeal. However, appellant’s prayer for reasonable attorney fees is denied. Appellant did not ask for attorney’s fees before the commission. Consequently, we cannot apply Civil Service Rule 13:35 to grant attorney’s fees. Additionally, there is no statutory authority that allows us to assess attorney fees for an appeal to this court.

REVERSED AND RENDERED.

LANIER, J., concurs and may assign reasons.

      . La.R.S. 42:1451 which authorized the Civil Service Commission to impose reasonable attorney fees incurred by an employee in successfully appealing the action of the employing department or agency has been declared unconstitutional by this court. In re Brisset, 436 So.2d 654 (La.App. 1st Cir. 1983), writ denied, 441 So.2d 749 (1983).