text:
    Denise LICAUSI v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Health Services and Environmental Quality.
    Nos. 83 CA 1317, 83 CA 1318.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    See also 458 So.2d 144.

      Denise Licausi, in pro per.
    William C. Cox, Staff Atty., Dept, of Health & Human Resources, New Orleans, for appellee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for Herbert L. Sumrall.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellant, Denise Licausi, in proper person, appeals her suspension (83 CA 1317) and termination (83 CA 1318) by appellee, Department of Health and Human Resources, Office of Health and Environmental Quality. The Civil Service Commission affirmed both the suspension and termination.

Licausi was employed from August 23, 1979 until July 10, 1981, as a Sanitarian I with the Department of Health and Human Resources, Jefferson Parish Health Unit. Her working hours were from 8:00 A.M. to 4:30 P.M., Monday through Friday. Licau-si was responsible for inspecting various types of establishments and submitting reports on each inspection. Most of the day was spent in the field conducting inspections, but some office work was necessary in the early morning and late afternoon.

Licausi was suspended by Harold A. He-itkamp, Assistant Secretary, by letter dated May 23, 1980. The suspension was effective from May 24,1980 through June 22, 1980. The suspension resulted from two separate incidents involving falsification of inspection reports. An inspection report, dated January 30, 1980, on Big John’s Foodland was not signed by the owner, although a purported signature had been placed on the form. Licausi was charged with placing or allowing another to place the false signature on the form. On March 3, 1980, Licausi conducted an inspection of a Pizza Hut located in Kenner. She admitted placing the signature of the owner/manager on the bar inspection form. The letter of suspension also mentioned a letter of reprimand dated April 17, 1980, for repeated deviations from office procedures and supervisory directives.

Notice of appeal of the suspension, postmarked June 20, 1980, was filed on June 23, 1980, with the Civil Service Commission. Licausi alleged that the questioned signature on the Big John’s inspection report had been written over several times and that she did not remember noticing anything about it when it was made. Further, she claimed that no one told her that she was accused of making the signature when it was shown to her. Regarding the Pizza Hut incident, Licausi maintained that she did inspect it, but was out of bar inspection forms. Upon her subsequent return to the office, she filled out a form and signed Mr. Tromontana’s name. She asserted that this was not an attempt to falsify anything, but rather a mere attempt to substantiate the inspection. Finally, Li-causi averred that she had been vindictively and unnecessarily singled out.

Licausi was discharged by Mr. R.K. Banks, Acting Assistant Secretary, by letter dated July 9, 1981. The dismissal was effective at 4:30 P.M. on July 10, 1981, or upon receipt of the letter, whichever occurred first. As cause for the action, Li-causi was charged with lack of adaptation to authority, chronic tardiness, leave abuse, falsification of agency records and inappropriate conduct while on official duty.

Notice of appeal of the termination was filed on August 6,1981. Licausi denied the charges and in the alternative averred that the charges were not cause for termination. She further alleged that she was the victim of discrimination. She asked to be reinstated to her position with full back pay, rights and privileges and attorney’s fees.

ACTION OF THE COMMISSION

Pursuant to Civil Service Rule 13.23, the two appeals were consolidated. A public hearing was held on March 1, 1982, and April 6, 1982, in New Orleans before a referee appointed by the Civil Service Commission. The referee maintained the suspension and termination in an opinion dated December 30, 1982. The Civil Service Commission affirmed the decision of the referee on July 14, 1983. Licausi appeals that decision.

ASSIGNMENTS OF ERROR

Licausi alleges that the Civil Service Commission erred in:

1. consolidating the suspension and dismissal appeals without allowing a separate hearing on the suspension;
2. sustaining the suspension because the burden of proof was not met;
3. failing to find that the suspension was too harsh;
4. untimeliness and complete contrast of the 1981 job service rating as compared to the 1980 service rating;
5. giving less weight to testimony of appellant and her witnesses than that afforded appellee’s witnesses; and
6. failing to find that the referee allowed improper introduction of documents into evidence over appellant’s objections.

I.

Licausi assigns as error the Commission’s consolidation of the suspension and dismissal appeals. The consolidation of two or more appeals which involve similar or related circumstances is allowed by Civil Service Rule 13:23. Clearly, the circumstances surrounding the suspension and dismissal are similar or related. The consolidation did not affect Licausi’s rights since she was afforded a full hearing on the suspension appeal, as well as the dismissal appeal. Accordingly, this assignment of error is without merit.

II.

Licausi alleges that the suspension should have been overturned by the Commission since the appointing authority did not meet its burden of proof.

“The scope of review of a Civil Service Commission decision extends to both the law and the facts. La. Const, art. 10, § 12. The standard of review of decisions of the Commission is the same as that in any other civil case. Thus, the findings of fact of the Commission must be afforded great weight and will be upheld absent manifest error.” Lambert v. Department of Corrections, Louisiana Correctional and Industrial School, 451 So.2d 1340 (La.App. 1st Cir. 1984).

The appointing authority’s reasons for suspending Licausi were enumerated in the May 23, 1980 letter. The contents of the letter have been previously set forth. Evidence was presented at the hearing to substantiate the charges against Licausi. The referee found that the appointing authority proved the charges listed in the letter of suspension. The Commission agreed with the referee’s finding. The record reveals that Ms. Licausi did, in fact, allow falsification of a signature, did with or without his authority sign Mr. Tramon-tana’s name, and did deviate from office procedures and directives. We find no manifest error in the conclusions of the Commission. This assignment of error has no merit.

III.

In her third assignment of error, Licausi contends that the suspension was too harsh. In support of her contention, she argues that since there was no written policy regarding the situation with the Pizza Hut inspection report, her action in signing the owner’s signature was not technically wrong. Therefore, she concludes the suspension was too harsh. Further, she continued to deny the charge relative to the Big John’s inspection report, but did not discuss the matter.

The falsification of agency records is a very serious matter. The accuracy of the sanitarian’s reports is essential to the efficient and orderly operation of the agency. Although there may have been no written policy on this point, anyone should know that signing another person’s name without permission of both the person and the supervisor is not proper. Ms. Licausi might well have been terminated for her actions. We do not find that the suspension was too harsh under the circumstances. See Lambert, supra. This assignment has no merit.

IV.

The fourth assignment of error concerns the untimeliness and contrast of Li-causi’s 1981 service rating as compared to the 1980 service rating. The timeliness and correctness of the 1981 service rating was not an issue in the case. If Ms. Licau-si had any complaints about her service rating, she should have taken the matter to the Commission at the proper time.' As this question is not properly before the court, it will not be considered at this time.

V.

Licausi alleges that the Commission erroneously gave more weight to the testimony of appellee’s witnesses than was accorded to her and her witnesses.

It is the duty of the referee (trier of fact) to listen to the testimony and if a conflict exists, to make reasonable evaluations of credibility and reasonable inferences of fact. The appellate court must not disturb the findings of the referee in the absence of manifest error. The reason for this standard of review is the referee is in a better position to evaluate live witnesses whereas the appellate court’s review is limited to a cold record. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Copies of any books, records, papers or other documents of any of the executive and administrative departments, boards, and agencies of this state, and copies of any books, records, papers, or other documents of any of the political corporations, bodies politic, boards, departments and agencies of this state and the parishes and municipalities thereof, when certified as being true copies by the official, officer or employee in whose custody they may be, shall be admitted in evidence in all courts of this state, equally with the originals of such books, records, papers or other documents.

We find no manifest error on the part of the referee or the Commission and we agree with their conclusion. This assignment is without merit.

VI.

Finally, Licausi alleges that documents were improperly introduced over her objections at the hearing. Ms. Licausi fails to do more than make allegations. She gives no argument or legal reason for excluding the questioned documents. In fact, all that she does is to make references to her attorney’s objections at the hearing by reference to the transcript before wandering into a discussion about office politics.

After carefully reviewing the record, we conclude that Ms. Licausi’s allegation is meritless. She referred to approximately eleven objections made by her attorney at the hearing. On two occasions, an objection was made and nothing was introduced at that time. A witness’ use of notes was objected to because the attorney had not seen the notes. He was then allowed to see the notes, making the objection moot. The remaining objections primarily involve the introduction of photocopies rather than original documents.

All of the documents were records of the appointing authority. Copies of any records, papers or other documents of any state agency, when certified as being true copies by the official custodian, are to be admitted into evidence equally with the originals of the same, pursuant to L.S.A.R.S. lS^H. Appellee introduced a certificate of Mr. Fox wherein he stated that he was the official custodian of the records and that the copies of the documents were true copies of the official records. This certificate was introduced in conjunction with all of the copies of the agency’s documents. This assignment is without merit.

Ms. Licausi’s pro se assignments of error address only her suspension and not her termination although the relief sought by her requests the reversal of both. Turning to the question of termination, then, we find that fifteen findings of fact were made by the referee. These findings included those previously discussed in this opinion and also chronic tardiness, coarse and abrasive language to a superior and to the public, and claims for excessive mileage. Additionally, the record reflects Ms. Licau-si’s actions were generally disruptive. Ms. Licausi’s response is that although she was tardy, others were tardy also; that although she did not get along with her supervisor, Ms. Williams, it was Ms. Williams’ fault; that although she used abusive language, others did also. She argues that she was being singled out for punishment. Basically, appellant argues that termination was too severe a penalty for her offenses.

“... a person ... in the classified state service may be subjected to disciplinary action, such as dismissal, if the conduct complained of by the appointing authority impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is en-gaged_” Lambert, supra.

The record amply supports the conclusion that Ms. Licausi’s actions were disruptive of the efficient and orderly operation of the Jefferson Parish Health Unit. As such, we find no error in her termination.

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

AFFIRMED.

      . Article 13:3711 provides:


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Janis DOYLE, et al., Plaintiffs-Appellants, v. UNITED GENERAL INSURANCE CO., et al., Defendants-Appellees.
    No. 83-917.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Donald L. Mayeux of Guillory, McGee & Mayeux, Eunice, for plaintiffs-appellants.
    Joseph Bradley Ortego of Young & Bur-son, Eunice, for defendants-appellees.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiffs-appellants are the major children and grandchildren of Steve Doyle, Jr., who died on July 3, 1980, after suffering a stroke. Decedent was employed as a laborer by defendant-appellee Oilfield Construction Company. Defendant-appellee United General Insurance Company is the compensation underwriter for Oilfield Construction Company. The trial court found that the stroke was a compensable accident arising out of and in the course of decedent’s employment. Plaintiffs were awarded medical and funeral expenses, but plaintiffs’ claims for dependency benefits, penalties, and attorney fees were denied. Plaintiffs appeal. We affirm.

PACTS AND PRIOR PROCEEDINGS

On July 2, 1980, Steve Doyle, Jr. worked on a board road near Bossier City, Louisiana, for his employer, Oilfield Construction Company. Mr. Doyle had been a laborer for Oilfield Construction Company for many years. After completing work, Mr. Doyle and the other members of the work crew returned to the motel at which they were staying.

According to deposition testimony of Steve Doyle, III, one of the plaintiffs in this case and a member of the work crew, his father purchased some fried chicken and Gator Aid on the way to the motel. Upon arriving at the motel, approximately forty-five minutes after leaving the job site, Mr. Doyle was unable to get out of the truck. Co-workers helped him enter his room, but Mr. Doyle remained ill and shortly thereafter was taken by ambulance to a local hospital.

Mr. Doyle remained in the intensive care unit for approximately forty-eight hours before he died. An autopsy established the cause of death as basilar artery thrombosis, commonly known as a stroke. The autopsy also revealed that Mr. Doyle had long suffered from generalized arteriosclerosis, which had progressed to an advanced stage at the time of death.

The defendants refused to pay any benefits upon the claim and demand of decedent’s children, and plaintiffs subsequently filed suit. Plaintiffs are the major children and grandchildren of decedent. The trial court found that decedent’s stroke and subsequent death was a compensable accident arising out of and in the course of decedent’s employment. The court ordered defendants to pay plaintiffs’ expenses for decedent’s hospitalization, medical care, and burial. Defendants have complied with this order and do not contest its propriety on appeal.

The trial court also found that plaintiffs did not meet their burden of proof under LSA-R.S. 23:1252 that they were legally and actually dependent, in whole or in part, on decedent. The trial court further found that defendants’ refusal to pay benefits upon plaintiffs’ demand had not been “arbitrary, capricious, or without probable cause” and therefore defendants were not liable for statutory penalties and attorney fees under LSA-R.S. 22:658. Plaintiffs appeal from these latter two findings.

ISSUES

The plaintiffs assign as error two findings by the trial court; plaintiffs contend:

(1) It was error to find that plaintiffs had not met their burden of proof that they were legally and actually dependent upon decedent.
(2) It was error to find that defendants had not arbitrarily, capriciously, or without probable cause denied benefits to plaintiffs when presented with a claim.

DEPENDENCY BENEFITS

Plaintiffs contend that, though no plaintiff was entirely dependent upon decedent, they relied upon his gifts of money, food, and shelter to some degree and therefore should receive partial dependency benefits. No plaintiff is within the class of conclusively presumptive dependents set forth by LSA-R.S. 23:1251 (surviving spouse or incapacitated children with whom decedent resided, minor children, children under twenty-three years of age that are full-time students). If any plaintiff is to recover dependency benefits, he or she must prove dependency under LSA-R.S. 23:1252, which provides:

“In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; in such other cases if there are a sufficient number of persons wholly dependent to take up the maximum compensation, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof.”

There are two prongs that plaintiffs must meet under this section: first, they must show actual dependency; second, this dependency must be of sufficient magnitude, as a matter of law, to amount to legal dependency. If any one or more of plaintiffs can meet the test under section 1252, they may recover partial benefits because of their relationship to decedent as lineal descendants, LSA-R.S. 23:1253, provided that they can show such dependency existed at the time of decedent’s accident and death. LSA-R.S. 23:1254.

Plaintiffs must prove actual dependency by a preponderance of credible evidence; a finding of actual dependency under section 1252 is essentially a factual determination. Castle v. Prudhomme Tank Truck Line, Inc., 417 So.2d 1205, 1208 (La.App. 1st Cir.), writ denied, 422 So.2d 423 (La.1982); Griffitts v. Tiger Well Service, Inc., 226 So.2d 175, 176 (La.App.3d Cir.), writ denied, 254 La. 852, 227 So.2d 594 (1969); see McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971); Turner v. Consolidated Underwriters, 170 So.2d 199 (La.App.3d Cir.), affirmed, 248 La. 37, 176 So.2d 420 (1965). A finding of actual dependency or the absence thereof by the trial court is entitled to great weight. Unless a factual finding is shown to be clearly wrong, it will not be disturbed on appeal. Harris v. State Through Huey P. Long Memorial Hospital, 378 So.2d 383, 389 (La. 1979); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Roussel v. Colonial Sugars Company, 318 So.2d 37, 39 (La. 1975).

On the subject of actual dependency, the record contains conflicting and inconsistent testimony between the plaintiffs, and often inconsistencies between different portions of the testimony of a single plaintiff. We particularly note that plaintiffs’ deposition testimony often differed from that given at trial. The trial testimony was, of course, the more favorable of the two for showing dependency. Plaintiffs’ only evidence of dependency was testimony.

On the basis of the record, we cannot say that the trial judge was clearly wrong in finding no actual dependency. To the contrary, we observe ample support for his finding.

Even if we fully accepted plaintiffs’ contentions on appeal, which we clearly do not have to do, we would find, as a matter of law, that plaintiffs have not established legal dependency. The strongest claim is that decedent occasionally provided certain plaintiffs with temporary shelter, food, or small sums of cash. Such occasional gifts or aid do not amount to legal dependency under section 1252. See Durbin v. Argonaut Insurance Co., 393 So.2d 385 (La. App. 1st Cir.1980); Affiliated Foods, Inc. v. Blanchard, 266 So.2d 539 (La.App. 3d Cir.1972).

The trial court did not err in finding that plaintiffs were not entitled to dependency benefits.

STATUTORY PENALTIES AND ATTORNEY FEES

Plaintiffs contend that defendant insurance company should pay statutory penalties and attorney fees because it did not pay the medical and funeral costs of decedent upon claim and demand.. Plaintiffs were required to file suit for these benefits. The relevant statutory section provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

LSA-R.S. 22:658 (emphasis added).

The focus of our inquiry is whether defendants’ actions were “arbitrary, capricious, or without probable cause.” If defendants had a rational basis upon which to deny decedent’s benefits, then defendants did not act arbitrarily, capriciously, or without probable cause in requiring plaintiffs to prove their case at trial, and we must approve defendants’ actions. The analysis of defendants’ rationality in denying plaintiffs’ claim must include the law of workers’ compensation — i.e., under the law, was defendants’ position that plaintiffs were not entitled to benefits arbitrary, capricious, or without probable cause?

Plaintiffs contend that Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119 (La.1982) provides the law regarding the payment of benefits in this case, and, moreover, that just as defendant insurer’s refusal to pay benefits in that case was held to be proscribed by LSA-R.S. 22:658, then so is defendant’s refusal to pay benefits in the present case proscribed by section 658. Plaintiffs are half right. Guillo-ry provides the law in this case for determining when compensation is due under LSA-R.S. 23:1031, but Guillory’s disposition of the penalties and attorney fees issue is not controlling here.

Guillory reaffirmed the rule of Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969), that when disability or death follows an accident within the course of employment, the disability or death is presumed to arise out of such employment, notwithstanding the fact that a preexisting condition may have contributed to or caused the disability or death. The presumption may be rebutted by the employer, but absent such a rebuttal, the employer must pay compensation. 420 So.2d at 123-24. See also Juge & Phillips, A New Standard for Cardiovascular Claims in Workers’ Compensation, 43 La.L.Rev. 17 (1982).

The Guillory Court found, under the discrete facts of that case, that defendants should clearly have known that they could not rebut the presumption:

“In this case, all parties agreed that Guillory suffered an accident in the course of and arising out of his employment. Furthermore, all agreed that Guillory was totally and permanently disabled after the accident. The defendant-insurer paid most of plaintiff’s medical bills but denied that it owed the plaintiff compensation benefits, on the contention that there was no causal connection between the accident of December 15, 1978 and the ensuing disability.
The Bertrand decision was rendered in 1969 and has been the prevailing law since then. Notwithstanding the rebut-table nature of the Bertrand presumption, the tenor of the strong facts and evidence of causality in this case make the defendant’s refusal to pay compensation arbitrary and capricious.”

420 So.2d at 124-25.

In the present case, “strong facts and evidence of causality” do not exist which make defendant insurer’s refusal to pay benefits arbitrary and capricious.

First, defendants legitimately raised the question as to whether or not the accident occurred in the “course” of work. The record indicates that decedent may have perspired a bit more than usual at work on the day he became ill, and also that he may have experienced some cramps and dizziness. However, decedent did not become noticeably ill until he arrived at the motel. We agree with the trial judge that, under the decided cases, decedent’s illness is properly compensable as within the “course” of his work; however, we do not believe that defendants acted arbitrarily or capriciously in contesting the issue.

An even stronger basis upon which defendants contested the compensability of decedent’s illness and death is the “arising out of” requirement of LSA-R.S. 23:1031. This causal requirement is presumed to be met in the present case, just as it was in Guillory. However, defendants are not totally precluded from attempting to rebut the presumption. Unlike Guillory, in which the medical evidence overwhelmingly supported plaintiff’s case, defendants in the present case presented competent, expert medical testimony that the preexisting condition could have been the sole cause of decedent’s illness and death. Again, we agree with the trial judge that the facts of the case and the law on this issue support a finding that the accident was one “arising out of” decedent’s work. Defendants’ contentions to the contrary, however, are not arbitrary and capricious.

The serious and complex questions of medical and legal causation and the conflicting trial and deposition testimony on all issues amply illustrate that defendant insurer did not deny plaintiffs’ claims arbitrarily, capriciously, or without probable cause. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626, 635 (La.1982); McDonald v. International Paper Company, 406 So .2d 582, 584 (La.1981).

To hold the insurer liable for penalties and attorney fees in this case would be to state, in effect, that in any instance where employer and insurer contest liability under the Workers’ Compensation Act, the insurer will be liable for penalties and attorney fees, in addition to benefits, should employer and insurer not prevail in their cause. We do not believe that this can be the true meaning of a statute merely proscribing conduct which is “arbitrary, capricious, or without probable cause.” As noted in Guillory, the purpose of LSA-R.S. 22:658 “is to discourage attitudes of indifference to the injured employee’s condition.” 420 So.2d at 124. The purpose of the statute most clearly is not to frighten employers and insurers away from defenses that they rationally believe merit the attention of a trial court.

The defendants exercised their legal right to defend against plaintiffs’ claim. This choice was based on a rational understanding of the law and the facts. The trial court found defendant insurer liable for decedent’s benefits under the Workers’ Compensation Act, but this fact alone does not render defendants’ choice to contest liability “arbitrary, capricious, or without probable cause.” The trial court did not err in denying plaintiffs’ claim for penalties and attorney fees.

SUMMARY

The trial court did not err in finding that plaintiffs had failed to prove that they were legally and actually dependent on decedent at the time of his accident and death. The trial court did not err in finding that defendants had not acted arbitrarily, capriciously, or without probable cause by denying plaintiffs’ claim and demand for benefits. Based on the above reasons, the judgment of the trial court is affirmed at plaintiffs’ costs.

AFFIRMED.

      . Steve Doyle, III, Janis Doyle, Marlene Doyle, Leta Doyle, Felicia Doyle Allen, and Patrick Doyle.

      . Dwayne Mason, Allison Doyle, and Cameron Doyle.

      . Defendants also contend that Guillory involved a disability resulting from heart disease, whereas decedent in the present case died from a stroke. We see no reason to draw a distinction between cerebrovascular accidents and cardiovascular accidents, at least for purposes of the present case. However, we do not label the attempt to draw such a distinction as “arbitrary and capricious" when evidence is adduced to support such a distinction.


author: GRISBAUM, Judge.

text:
    Don ALMERICO v. Janet KATSANIS, Diane E. Lambert, and Dorothy Lambert Winingham.
    No. 84-CA-39.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Don Almerico, Destrehan, for appellee.
    James H. Minge, New Orleans, for appellants.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is a matter regarding attorney fees. Two issues are presented:

(1) Whether the trial court erred in awarding $2500 in attorney fees in connection with a succession matter.

(2) Whether the trial court erred in awarding an additional $600 in attorney fees in accordance with R.S. 9:2781 (open accounts).

Appellants are Janet Katsanis, Diane E. Lambert, and Dorothy Lambert Wining-ham. Janet Katsanis and Diane Lambert are the children of Dorothy Lambert Win-ingham and the deceased, Joseph Oliver Lambert. They retained Don Almerico, ap-pellee-plaintiff, in 1976 to handle the succession of Joseph Oliver Lambert. On April 1, 1977, Almerico sent his bill for $2500 to the heirs. On February 21, 1978, Almerico sent a letter (by certified mail) demanding payment of his fee. By letter dated February 25, 1978, Ms. Katsanis objected to the amount of the bill and requested Almerico amend the succession pleadings to reflect the elimination of the mother’s usufruct. Thereafter, Almerico sent another letter dated March 14, 1978 advising if the fee was not forwarded by March 17, 1978 he would file suit. On June 6, 1978, he filed a “petition in suit on open account” against Janet Katsanis, Diane E. Lambert, and Dorothy Lambert Wining-ham. After trial on the merits, the trial court, on October 24, 1983, gave judgment against Janet Katsanis, Diane E. Lambert, and Dorothy Lambert Winingham, in soli-do, in the amount of $2500 together with legal interest from date of demand. It also awarded $600 in attorney fees together with legal interest from the date of judgment. Thereafter, it rendered a second “final” judgment on January 11, 1984. From these judgments, appellants appeal. We amend in part, annul in part, and set aside in part.

Criterion for evaluating the first issue is provided in Watson v. Cook, 427 So.2d 1312, 1316 (La.App.2d Cir.1983) as follows:

Any dispute relative to an attorney-client relationship, ... is subject to the close scrutiny of the courts and is to be resolved under the provisions of the Code of Professional Responsibility.

Leenert’s Farms v. Rogers, 421 So.2d 216 (La.1982); Watson v. Cook, supra.

We resolve this dispute, therefore, by reference to Disciplinary Rule 2-106(B) of the Code of Professional Responsibility, which provides in part:

Factors to be considered as guidelines in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitation imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

The record reflects the appellee placed the parties into possession; however, the judgment of possession awarded Ms. Dorothy Lambert Winingham the usu-fruct over Mr. Lambert’s share of the community property even though her remarriage served to extinguish her right to the usufruct under our Civil Code article 916. Since appellee represented all three parties in this succession, he should have been aware of this important fact; therefore, he did not “complete” the succession. Additionally, there is testimony that the appel-lee expended approximately 14 hours in these succession proceedings. From the record facts, guidelines (1) and (4) of DR2-106(B) are particularly relevant to the circumstances of this case. The attorney did not complete the case which did not present any unique or difficult legal questions to resolve; he expended 14 hours on the case. We, therefore, find the trial court’s judgment of $2500 is excessive, and we amend the judgment of $2500 to $1000.

Additionally, we note the trial court executed a second judgment dated January 11, 1984 which reduced the prior judgment from $2500 to $1534. Our jurisprudence is quite clear a trial court cannot amend a final judgment’s substance under our Code of Civil Procedure article 1951. Therefore, we annul this judgment.

In addressing the second issue of whether the trial court erred in awarding an additional $600 in attorney fees in accordance with La. R.S. 9:2781 (open accounts), we note La. R.S. 9:2781, at the time of the filing of the suit (June 6, 1978), read as follows:

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’s fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor when they are living together as husband and wife on behalf of the debtor may be introduced as evidence of written demand on the debtor.
If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor, and if the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.

Subsequent to the filing of this suit, this statute has been amended in 1981 and 1982 to apparently include single professional services; however, we find any such changes constitute “substantive” amendments which cannot be applied retroactively. See Commercial Credit Claims Service, Inc. v. Richardson, 454 So.2d 177 (La.App. 1st Cir.1984).

Therefore, even though the suit was styled a suit on an “open account,” the trial court erred in awarding $600 in attorney fees in accordance with La. R.S. 9:2781 in effect in 1978.

For the reasons assigned, that judgment dated October 24, 1983 which awarded $2500 in attorney fees is amended to $1000 and that part of the judgment dated October 24, 1983 which awarded $600 in attorney fees is set aside. The judgment dated January 11, 1984 awarding $1534 in attorney fees is annulled.

AMENDED IN PART, ANNULLED IN PART, AND SET ASIDE IN PART.


text:
    Becky MARLAND v. The ESTABLISHMENT, INC. (and A Better Place, Inc.).
    Nos. 84-CA-127, 84-CA-128.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Frederick J. King, Jr., New Orleans, for defendant-appellee.
    Gregory W. Roniger, Jefferson, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a worker’s compensation matter. The plaintiff/appellee, Becky Marland, was an employee of The Establishment, Inc., the defendant/appellant when she sustained a fractured nose as a result of a work-related accident. The trial court awarded worker’s compensation benefits for “disfigurement about the face,” and The Establishment, Inc. appeals. We affirm.

Two issues are presented:

(1) Whether the defendant sustained its burden of proving the plaintiff’s injury was caused by-her intoxication.

(2) Whether the plaintiffs injury is materially disfiguring and permanent in nature so as to be compensable under our Revised Statute 23:1221(4)(p).

On December 10, 1980, while in the course and scope of her employment, Becky Marland tripped on steps and fell, striking her nose on a nearby chair and sustaining a nasal fracture. A co-employee rushed her to the emergency room of West Jefferson Hospital where she was immediately treated. The next day she was seen by Dr. John Hart, stipulated at trial to be an expert in the field of medicine with a speciality in the field of ear, nose, and throat, who performed surgery on the cartilage structure.

Applicable to the initial issue is Revised Statute 23:1081(l)(b) which provides that no compensation shall be allowed for an injury caused by the injured employee’s intoxication at the time of the injury. Importantly, section 1081(2) places the burden of proving intoxication upon the employer. The record reflects an employee of The Establishment, Inc. brought beer onto the premises on the evening of the injury, and Becky Marland along with her co-employee drank beer in the presence of the store manager. Ms. Marland testified she drank only about one-quarter of one can of beer, and the defendant failed to produce any witnesses to counter this statement. Two witnesses, Karen McIntosh, the store manager, and Sharon Berry, who was at the time of the accident an employee of The Establishment, Inc., testified for the defendant. Ms. McIntosh testified that on the day of the accident the plaintiff appeared “bubbly,” was carrying some “little white pills,” had been stumbling, was in a “strange mood,” and slurred her speech. Berry further testified that a week after the accident the plaintiff told her she had lost a marijuana “joint” at the site of the accident. Berry’s possible bias against the plaintiff was demonstrated on cross-examination when she testified there had been arguments and ill feelings between herself and the plaintiff. We find from this record, apart from Berry’s testimony, which the trial court apparently disbelieved, there is no evidence to support a finding of the plaintiff’s intoxication. Reasonable evaluations of credibility made by the trier of fact should be accorded great weight by the reviewing court. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998, 999 (La.1978). Accordingly, the defendant failed in its burden of proving this defense.

With regard to the second issue of whether the plaintiff’s injury is materially disfiguring and permanent in nature so as to be compensable under our Revised Statute 23:1221(4)(p), the record reflects The Establishment, Inc. alleged that any disfigurement of Becky Marland’s nose was not a result of her accident on the defendant’s premises, but rather was a result of a prior accident. The defendant presented three witnesses at the trial. Timothy Hummel testified he had seen the plaintiff before and after the accident and there was “no difference in her nose.” Karen McIntosh stated, “it wasn’t grossly different,” and “I never paid any attention basically.” Sharon Berry, a witness whose possible bias was brought out by the plaintiff’s attorney at trial, testified there was “no difference at all in Becky Marland’s nose.” She also stated the plaintiff admitted to her that she had sustained a broken nose more than a year prior to the time of her accident at The Establishment, Inc. and had been wanting to get it fixed. We note the defendant presented no expert witnesses. On the other hand, the plaintiff testified that her nose had never before been injured or broken and was “perfectly straight” before her accident. She further stated that in addition to the scar on her nose and its disalignment, she suffers from an inability to breathe properly on humid days as a result of the injury. Dr. Hart stated at trial that upon examining the plaintiff on December 31, 1980, he found a recent fracture of the nose and defined fracture as a “nasal bone pushed to one side,” in this case to the left side. The fracture, he stated, was “quite noticeable” and “to a significant degree” with considerable swelling of the soft tissues of the nose. Dr. Hart performed surgery (a procedure called “closed reduction of the nasal fracture”) in order to straighten the fractured fragments of the nose. The results of the surgery, according to Dr. Hart, were “acceptable” not “good” in that the airways of both nostrils were good and there was only a minor deflection of the bone to the left and a small, visible scar on the nasal dorsum. He concluded from a final examination of the patient the small and visible scar as well as the bump on the nasal dorsum were permanent. The nose, according to Dr. Hart, was not absolutely straight or perfect, and there was “facial asymmetry.” He further stated the facial asymmetry could be a pre-existing asymmetry but that the slight deformity in the nose consisting of a shortening of the bone was from a recent injury. He further stated at least some of the bump was a result of the surgery and thus was not the result of an earlier accident as alleged by the defendant. No photographs of the plaintiff were introduced into evidence.

Where compensation is to be allowed for disfigurement, it must appear that the injury is materially disfiguring and is permanent in character. Ousely v. Employers Mutual Liability Insurance Company, 121 So.2d 378, 379 (La.App. 1st Cir. 1960); Lewis v. Orleans Parish School Board, 371 So.2d 328, 329 (La.App. 4th Cir. 1979). A scar on the face of a claimant, which significantly mars the natural facial expression and is such as to attract attention, is a compensable “facial disfigurement.” Ousely v. Employers Mutual Liability Insurance Company, supra.

We find, as did the trial court, the evidence justifies an award of compensation for facial disfigurement. The plaintiff presented expert medical testimony in her favor and without contradiction by the defendant, and the trial judge, upon firsthand observation, found the plaintiffs injury materially disfiguring and compensable under our Revised Statute 23:1221(4)(p).

For the reasons assigned, the judgment of the trial court is affirmed, and all costs of this appeal are to be assessed against the appellant.

AFFIRMED.


text:
    SUCCESSION OF Doris DITTMAR, Widow of Elroy L. Quinn.
    No. 83-CA-845.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      James P. Magee, New Orleans, for appellant.
    Bernard J. Rice III, and Stumpf, Dugas, LeBlanc, Papale & Ripp, Harry C. Stumpf, Gretna, for appellees.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

The central issue in this succession case is whether the trial court erred in ordering a son to collate $61,258.13 to his mother’s succession. After the matter was submitted by stipulation and briefs, the trial court ordered Clifford C. Quinn (the son) to collate $61,258.13 to the estate of Doris Dittmar Quinn (his deceased mother). It recognized that all the children were in possession of the estate of their father, Elroy L. Quinn, by a judgment of possession signed April 30, 1953 and amended October 16, 1953. Finally, it declared that all the money due the .heirs from their father’s estate must be derived from the estate of Doris Dittmar Quinn. From this judgment, Clifford C. Quinn appeals.

On March 18, 1983, the succession representative for the succession of Doris Ditt-mar Quinn (wife of Elroy L. Quinn, Sr. and mother of Clifford C. Quinn) filed a motion for collation and for filing a tableau of distribution identifying certain advances made to Clifford Quinn by Mrs. Quinn (his mother) during her lifetime. On March 21, 1983, Florence Turberville and Helene Stewart (daughters of Mrs. Quinn and sisters to Clifford) filed a motion for collation and for filing a tableau of distribution. On April 27, 1983, Clifford responded by filing a rule to show cause why his portion of his father’s succession should not be delivered to him. These motions were heard on June 17, 1983 with the facts stipulated to by all parties.

On October 3, 1983, the Court denied Clifford C. Quinn’s rule to compel the succession representative of the succession of Mrs. Quinn to deliver his portion of Mr. Quinn’s succession and held that Clifford C. Quinn must collate the amount of $61,-258.13. After the trial court denied Clifford C. Quinn’s request for a new trial, he filed this appeal.

The parties’ stipulation of facts, in pertinent part, states:

In 1950, Mr. Elroy L. Quinn, Sr., died intestate. Mr. Quinn was survived by his spouse, Mrs. Doris Dittmar Quinn, and their five children: Elroy L. Quinn, Jr., Clifford C. Quinn, Florence Quinn, widow of Carl H. Turberville, Helene Quinn, divorced wife of Sidney Stewart, and Eveline Quinn, wife of Paul P. Arnold. On April 30, 1953, Mrs. Quinn and the children were granted a Judgment of Possession in Mr. Quinn’s succession. On October 16, 1953, that Judgment was amended to reflect an additional piece of property which had been accidentally left out of the original Judgment....
Under the Judgment of Possession, Mrs. Doris Dittmar Quinn, widow of Elroy L. Quinn, Sr., was recognized as the surviving spouse in community. As such, she received title to her undivided one-half share of the community with a legal usufruct over the remainder of the community. The naked ownership of Mr. Quinn’s share of the community went to the children.
Subsequent to the Judgment of Possession in 1953, Mrs. Quinn or her estate, with the joint participation of her children, sold all of these properties...
In each of these [sale] transactions, either Mrs. Quinn or her estate asked for and received the consent of the children in their capacities as naked owners before she died and as full owners after she died. That is, all five of the Quinn children signed the Acts of Sale. However, at the time of the sales, no proceeds were distributed to the children. Either Mrs. Quinn or her estate retained all the funds.
The total amount received in connection with the ... [sale] transactions was "$135,600.00. Adding to this sum the cash included in Mr. Quinn’s succession ($1,818.65), the total value of the community existing between Mr. and Mrs. Quinn equalled $137,418.65. Thus, the children’s share of the community amounted to $68,709.33, and the interest of each of the five children was worth $13,741.87.
On December 8, 1977, Mrs. Quinn died while domiciled in Jefferson Parish, Louisiana.
For purposes of this Stipulation, Clifford C. Quinn admits that during his mother’s lifetime, he received from his mother advances amounting to at least $75,000.00. These advances were evidenced by a promissory note dated May 31, 1972.... Clifford did not make any payments on this note. In 1973, Mrs. Quinn filed suit on the promissory note, but the suit was dismissed by Mrs. Quinn, without prejudice, on October 2, 1973.

On appeal, Clifford C. Quinn assigns as error:

The court erred in failing to order the Succession of Doris Dittmar Quinn to deliver to Clifford C. Quinn the sum of $13,741.87 plus legal interest from the date of Mrs. Quinn’s death, which represents Clifford C. Quinn’s portion of Elroy L. Quinn Sr.’s succession.

Three issues are presented:

(1) Whether the trial court erred in ordering Clifford C. Quinn to collate $61,-258.13 to the estate of Doris Dittmar Quinn?

(2) Whether Clifford C. Quinn is entitled to legal interest from the date of the mother’s death on the sums owed to him for his portion of the father’s estate?

(3) Whether the trial court erred in finding that the money to the heirs from their father’s estate must be derived from the estate of their mother?

ISSUE ONE: COLLATION

The trial court’s judgment required Clifford C. Quinn to collate $61,258.13 to the estate of his mother. The question presented in this appeal is whether the trial court’s requiring a collation at this stage in the proceedings was correct. We find it was not.

The Louisiana Civil Code provides that among forced heirs equality of inheritance is presumed unless their ancestor expresses an unequivocal intent to favor one or more of them with all or part of the disposable portion. Louisiana Civil Code articles 1229-33, 1501. Collation (the supposed or real return to the mass of an ancestor’s succession which a forced heir makes of gratuities which are not intended as advantages from the disposable portion) is the means by which this equality is enforced. Louisiana Civil Code articles 1227, 1231; Succession of Webre, 247 La. 461, 172 So.2d 285, 289 (1965). Article 1227 of the Civil Code defines collation to be:

... the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the effects of the succession. (Emphasis added)

Succession of Webre explains, “It arises from an obligation, or duty, imposed upon the heir by law.” Webre, 172 So.2d 285, 289.

Collation is an incident to the action of partition of succession property among the heirs. See Lamotte v. Martin, 27 So. 291, 293 (La.1899). Louisiana Civil Code Chapter 12 on the Partition of Successions which follows the chapter on collation includes detailed provisions for effecting the rules of collation. It cannot be determined whether a collation debt may be due until the value of the estate as a whole is finally fixed in the succession proceedings and action is taken to have the succession property partitioned. See Louisiana Civil Code articles 1355-56.

In this case, although the succession representative has filed a calculation of the active mass, there is no indication that it was judicially approved. There is no question Clifford received advances. By stipulation, he admits to advances amounting to at least $75,000. Moreover, the effect, if any, of the parties’ stipulation that Clifford received advances of at least $75,000 on the calculation of the active mass has not been decided. Until there is a proper calculation of the active mass, it cannot be ascertained whether Clifford actually “owes” his mother’s succession a collation debt. The trial court, thus, erred in requiring Clifford to collate $61,258.13. We remand this matter to the trial court for proper calculation of the active mass and for a determination of the amount Clifford owes, if any, to his mother succession in order to equalize the heirs’ portions.

ISSUE TWO: LEGAL INTEREST

Because legal interest was not demanded in Clifford Quinn’s “Rule to Show Cause,” Clifford cannot on appeal raise this issue for the first time and receive legal interest on his portion of his father’s succession. Louisiana Code of Civil Procedure article 1921. Louisiana Code of Civil Procedure article 1921 provides:

The court shall award interest in the judgment as prayed for or as provided by law. (Emphasis added)

See Succession of Mulqueeny, 253 La. 595, 218 So.2d 607 (1969).

ISSUE THREE: THE NATURE OF A USUFRUCT

We find that the trial judge was correct in ruling that the money due the heirs from their father’s estate must be derived from the estate of their mother, Doris Dittmar Quinn. Mrs. Quinn became usufructuary of the properties in the succession of Mr. Quinn, and, as these properties were sold with the consent of the children, she retained the usufruct over the money derived from those sales. Civil Code article 538 states:

If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound to pay to the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality.

Mrs. Quinn’s usufruct terminated upon her death, at which time her estate became obligated to account to these heirs as naked owners. Therefore, Clifford Quinn’s claim for funds from his father’s estate over which Mrs. Quinn exercised a usu-fruct is properly a claim against the mother’s succession.

DECREE

For the reasons assigned, we set aside that part of the trial court’s judgment which orders Clifford C. Quinn to collate $61,258.13, and we remand this matter to the Twenty-Fourth Judicial District Court of the Parish of Jefferson for further proceedings according to law and consistent with the views herein expressed. We affirm that part of the trial court judgment which finds all parties are in possession of the estate of their father, Elroy L. Quinn, and which holds the money due the heirs from their father’s estate must be derived from the estate of Doris Dittmar Quinn. All costs of this appeal are to be divided equally among the parties, but the assessment of other costs is to await the final disposition of the case.

AFFIRMED IN PART, SET ASIDE IN PART, AND REMANDED.

      . This amount is derived from the difference between the stipulated $75,000 which represents the minimum amount of advances Clifford received from his mother prior to her death and $13,741.87, the amount owed Clifford from his father's succession.

      . Under Louisiana Civil Code article 1237, the heir may release himself from his duty by renouncing the succession. Article 1237 states:
      If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant, from whom they have received such property, they may retain the gift, or claim the legacy to them made, without being subject to any collation.

      If, however, the remaining amount of the inheritance should not be sufficient for the legitimate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated, had he become heir, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion. (Emphasis added)
      See also Louisiana Civil Code articles 1251, 1277-78, 1285-86, and 1288.

      . In Mulqueeny, the Supreme Court reversed a court of appeal decision which allowed legal interest from date of judicial demand because legal interest was not prayed for. Mulqueeny, 218 So.2d 607, 610.


author: GRISBAUM, Judge. GAUDIN, Judge,

text:
    Barbara BOURGEOIS v. BILL WATSON’S INVESTMENTS, INC.
    No. 83-CA-786.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Lobman & Carnahan, David V. Batt, Me-tairie, for plaintiff-appellee.
    Christovich & Kearney, Terry Christo-vich Gay, New Orleans, for defendant-appellant.
    Before GRISBAUM, GAUDIN and CHE-HARDY, JJ.
   GRISBAUM, Judge.

This appeal arises as a result of an automobile accident. The plaintiff filed an action against the car dealer alleging negligence on the part of the dealer in failing to repair a defect in the accelerator system of her car. From a jury verdict in favor of the plaintiff for personal injuries, the defendant car dealer suspensively appeals. We affirm.

Five issues are presented for our review.

(1) Whether the trial court was clearly wrong in finding the car dealer was negligent and such negligence was the proximate cause of the accident.

(2) Whether the trial court erred in refusing to allow the jury to see Bill Watson’s Ford’s service records during deliberations.

(3) Whether a juror’s misconduct influenced the other jurors so as to deprive the defendant of a meaningful jury trial.

(4) Whether the trial court erred in refusing to give a special charge to the jury as requested by the defendant.

(5) Whether the trial court abused its discretion in awarding $25,000 in damages for personal injury to the plaintiff.

On October 20, 1978, the plaintiff, Barbara Bourgeois, purchased her 1979 Ford Mustang from Bill Watson’s Ford, Inc. On January 5, 1980, she was injured when her car hit a curb and flipped upside down. She was alone at the time of the accident.

In describing the accident, she testified as follows: While driving at approximately 20 to 30 miles per hour on West Esplanade Avenue in Metairie, her car began to accelerate spontaneously. She placed her foot underneath the accelerator pedal and pulled the pedal towards her; however, the car continued out of control “as if it were on cruise control.” Thereafter, attempting to brake the car, she placed one foot on the brake and then exerted pressure with both feet, to no avail. She testified that as a result of the braking action, her car swerved and hit a curb on West Esplanade, spun around, jumped the curb, and flipped upside down on the neutral ground.

Immediately after the accident, a passerby, Ms. Estelle Stinner, a licensed practical nurse, attempted to assist Ms. Bourgeois. Ms. Stinner testified the plaintiff was in a state of shock and that she complained of head pain and low back pain. Ms. Stinner recounted Ms. Bourgeois’ story as told at the time of the accident: “... the car kept going faster and faster. She (Ms. Bourgeois) said that she tried to stop the car, and nothing she would do would stop the car. The next thing she knew she was up on the neutral ground and the car was overturned.”

The jury awarded $25,000 against Bill Watson’s Ford, Inc. in favor of the plaintiff, and thereafter, Bill Watson’s Ford, Inc. filed a motion for a new trial and, in the alternative, for a judgment notwithstanding the verdict, both of which motions were denied.

ISSUE ONE

In addressing the issue of Bill Watson’s Ford’s negligence, the plaintiff alleges the dealer had three opportunities to repair the defective accelerator system in her car, once at the time of the sale of the car, at which time Bill Watson’s Ford was obligated to perform a pre-delivery check of the car in accordance with its contractual obligation imposed by Ford Motor Company. Additionally, Ms. Bourgeois alleges she complained to her dealer on two separate occasions of a sticking accelerator. The jury found the plaintiff’s vehicle contained a defect and the failure of Bill Watson’s Ford to adequately repair the defect was the proximate cause of the accident.

Two witnesses testified regarding whether a defect in the accelerator system of the plaintiff’s car existed at the time of the sale. The plaintiff’s witness, Fred Lieb-kemann, who was qualified as an expert in mechanical engineering, testified there was an accelerator malfunction. He examined the vehicle shortly after the accident and discovered two distinct problems with the accelerator precipatating the accident. First, there was a crack in the accelerator cable covering, and because the cable is directly linked to the accelerator, any tendency for this cable to “hang-up” would cause the accelerator pedal to be depressed resulting in acceleration of the vehicle. The relationship of the accelerator cable to the accelerator pedal was described in detail by Mr. Liebkemann as follows:

... there is a cable that goes from the accelerator pedal linkage to the accelerator arm on the carburetor and this is known as the throttle cable and it consists of an interwire or moving member inside of a sheet with a hole in it and the outside of this sheet is coated with rubber for protection. At the carburetor, this flexible cable enters a ferrule, which is a round hole and the cable had been pulled down rather tightly alongside of the back of the engine, such that the flexible part of the cable met the ridge guider at a 40°, 45° angle and where that occurred, the outer protective cover of the cable assembly was cracked open and this 40°, 45° sharp bend creates a restriction against movement of the inner cable. Over time, that bend will tend to get worse. Also over time, as a result of the outer covering being cracked, moisture can enter and corrosion can build up in there so the restrictive effect of it can get worse all the time.

Mr. Liebkemann further stated the cracking in the covering of the accelerator cable was caused by improper installation, and more specifically, by the extreme angle at which the cable entered a ferrule in the engine. Photographs which he took of the cracking of the accelerator cables were introduced into evidence. Mr. Liebkemann described the cause and effect relationship between the restriction caused by the cracking of the accelerator covering and the hanging up of the accelerator pedal as follows:

... the problem is a restriction of the action of the cable. In other words, you have the inside of that cable, you have the member that slides back and forth to operate the carburetor or to speed up or slow down the vehicle. Of course, when the operator presses down on the accelerator, the operator’s power from the operator’s foot speeding it up, when the operator takes the foot off the accelerator, there is nothing to stop it or slow it down. As this condition progresses your, angle gets worse. You start to get restriction in there. The over outing (sic) covering allows dirt and corrosion to build up in there. It restricts movement as it gets greater and greater. You can expect that when it finally does — well, if it progresses sooner or later, it will freeze up and stick. You can expect that problem when the operator depresses the pedal because the operator can exert more force with his foot than the spring does pulling back, but what you will get is the condition becomes progressively worse.

The second problem, he stated, involved the configuration and installation of the carpet around the accelerator pedal. The carpet was improperly installed and secured causing a bunching up and overlapping around the accelerator and creating a restriction in movement of the accelerator pedal. A photograph of the alleged defect was introduced into evidence.

Defendant’s expert witness, Patrick Va-lent, a design analysis engineer, who has worked 33 years with Ford automobiles, stated the angle of the cable, as demonstrated in the photograph taken by Mr. Liebkemann, is the angle which was intended by the Ford Company. He stated that by twisting the cable around to 180 degrees, the cable still moves within the tube without any inhibition. To Mr. Liebkem-ann’s testimony with reference to a crack in the plastic coating, Mr. Valent responded:

What Mr. Liebkemann referred to as a crack, he specifically mentioned that it was a crack in the plastic coating or the rubber coating on the outside of the cable, it’s not a crack. It is a discontinuity in the coating that is done on purpose. The reason it’s manufactured that way is that in its normal operation this particular- bracket here is mounted to the engine. It received a good bit of heat. If we were to put that molded section inside of this ferrule that heat would then attack this molded section and loosen the connection so you deliberately do not seal that all the way. Again the function of this cover is to keep water from leaking inside here, inside the passenger compartment. Water does not leak into this cable. This voided area we are looking at here is not a water leak. Water cannot get to that cable.
The cable as shown in the picture shows a cable exactly as this new one which has never been used at all, the insulation is normal and this cable is normal.

Additionally, Mr. Valent stated the carpet in 1979 Mustangs surrounding the accelerator is not intended to be attached to the floor but rather should move freely so as to prevent impediment to the pedal movement. This looseness, according to Mr. Valent, could not have impeded the accelerator pedal from coming back to idle.

We note, Mr. Valent admitted upon cross-examination that a bend in the linkage of the accelerator cable can cause the accelerator to hang-up or stick. In addition, Mr. Valent admitted outside suppliers designed systems for Ford cars so that he could not be sure of the design specifications of the accelerator system in the plaintiffs car.

The defendant complains that through no fault of its own, its expert was not given the opportunity to inspect the vehicle in question, and therefore, the defendant argues, the plaintiffs failure to produce the car as evidence leads to the presumption the production of the car would have been detrimental to the plaintiff’s case. We note this presumption is applicable only where the failure to produce the evidence is not explained. Babineaux v. Black, 396 So.2d 584 (La.App. 3d Cir.1981). In Babineaux, the court stated:

It is true that under a long line of jurisprudence, the failure of a litigant to produce evidence within his reach raises the presumption that the evidence would have been detrimental to his case ... however, this presumption is not applicable where the failure to produce the evidence is explained. Babineaux v. Black, 396 So.2d 584, 586.

Since Ms. Bourgeois had an explanation, i.e., it was required by her insurance contract with State Farm that she sell the vehicle to State Farm in order to recover property damages, we find the Babineaux presumption is inapplicable.

Ultimately, the credibility of witnesses lies with the trier of fact and is particularly a matter to which the trier of fact has much discretion. Payne v. New Orleans Public Service, Inc., 374 So.2d 189 (La.App. 4th Cir.1979). As the trier of fact, the jury is to exercise its discretion in determining whether or not to believe and accept any part or parts of a witness’ testimony and reject any part or parts thereof. Apparently, the jury found the plaintiff’s witness more convincing than the defendant’s witness, and we find no abuse of discretion by the jury particularly in light of the consistency in the testimony of the plaintiff’s witness and the inconsistency in the testimony of the defendant’s witness.

The expert testimony as well as photographs taken by Mr. Liebkemann adequately support the finding by the jury that there was a defect in the plaintiffs accelerator system at the time of the sale. The defendant’s expert witness admitted that a bend in the linkage of the accelerator cable can cause the accelerator to hang-up or stick and thereby corroborated the testimony of the plaintiff’s expert engineer by recognizing a condition in the vehicle which, if it had existed, could have precipitated the accelerator sticking or hang-up. Also significant is the admission by the defendant’s witness that outside suppliers designed systems for Ford cars which admission leads to the conclusion that this witness could not be sure of the design specifications of the accelerator system in the plaintiff’s car.

The jury found the defendant had been placed on notice of the defect in the plaintiffs accelerator system and the failure of the defendant to repair the defect was the proximate cause of the plaintiff's accident. We cannot say the trial court was incorrect in concluding the defendant’s breach of duty was so severe as to be the proximate cause of the accident.

In Hunt v. Ford Motor Company, 341 So.2d 614 (La.App. 2d Cir.1977), the court recognized the ordinary new car warranty system virtually forces the purchaser to look to the dealer for the discovery and repair of defects, and thus the dealer’s repairman is to be held to a high duty to make all reasonable efforts to locate and correct the difficulty. Because of Bill Watson’s Ford’s contractual obligation to Ford Motor Company to conduct a checklist inspection of every newly delivered vehicle, the duty of reasonable care, inspection, and repair owed by Bill Watson’s Ford to the plaintiff is as articulated in the Hunt decision.

It is true, as the defendant points out, the dealer does not have an obligation to disassemble a car and search out latent defects. Spillers v. Montgomery Ward, 294 So.2d 803, 807 (La.1974). Nevertheless, the automobile dealer repairman when presented with complaints of difficulty with a vital component of an automobile is, in effect, given notice of the existence of a defect and, although the precise nature of the defect may not be actually known, the dealer then may be presumed to know the vice of the thing he has sold. To negative the presumption, it is incumbent on the dealer to show he made all reasonable efforts to discover the precise nature of the defect and that the defect could not be discovered in spite of such effort. Hunt v. Ford Motor Company, 341 So.2d 614. The defendant failed to present evidence to demonstrate it made all reasonable efforts to discover the nature of the defect but instead alleged it had never been placed on notice of any defect in the plaintiff’s accelerator system.

Given the totality of the testimony at trial, however, it cannot be said the jury was clearly wrong in concluding the defendant had knowledge of the existence of the defect whether through its own discovery in a pre-delivery check of the car or by complaints made by Ms. Bourgeois on two occasions. Therefore, we will not disturb this finding of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Ms. Bourgeois testified she had presented her car to Bill Watson’s Ford at least ten times for servicing a variety of problems and twice for a sticking accelerator. Her husband corroborated her statement. The defendant produced a record of eight instances of service to the plaintiff’s car, but produced no record of complaints regarding the accelerator system. Several of Bill Watson’s Ford’s employees testified regarding reports made to them as service writers for repairs made to parts of Ms. Bourgeois’ car other than the accelerator system. None of them, however, could testify that the service records which were in the exclusive control of Bill Watson’s Ford were complete.

The defendant’s witnesses, Eugene Pel-legrine, who is now a service manager of Bill Watson’s Ford and was service writer before November of 1982, and Ronald Lam-arque, who was employed by Bill Watson’s Ford in 1979 as vice president and general manager, testified the standard procedure by Bill Watson’s Ford when selling a car is to make a very thorough pre-delivery check of the car. Record of the pre-delivery service check of Ms. Bourgeois’ car, however, was not available for trial probably because it was destroyed, as a matter of course, one year after the sale of the car.

We find the jury did not abuse its much discretion in relying upon the testimony of Ms. Bourgeois and her husband. Credibility determinations are particularly within the discretion of the trial court. Payne v. New Orleans Public Service, Inc., 374 So.2d 189, 191 (La.App. 4th Cir. 1979). The defendant relies heavily upon what it finds to be inconsistencies in Ms. Bourgeois’ testimony and on the fact that Ms. Bourgeois failed to produce receipts for repair work done on her accelerator. We find, however, any inconsistencies in Ms. Bourgeois’ testimony are minor and immaterial. Moreover, the defendant’s attorney impeached Ms. Bourgeois at trial and thus, the jury, in assessing the plaintiff’s credibility had the opportunity to consider inconsistencies in her testimony. The plaintiff did not have receipts of service rendered by Bill Watson’s Ford because, as Lamarque implicitly stated at trial, the customer must first request the receipt before it is given to him.

ISSUE TWO

The defendant alleges it was prejudiced by the failure of the trial court to allow the jury during deliberation to see the service records which were admitted into evidence. We look to Code of Civil Procedure article 1794, the controlling statutory provision, which provides:

In reaching a verdict the jurors must rely upon their memories, and, when they retire from the jury room to deliberate, they shall not be allowed access to any written evidence or any notes of the testimony of any witness, but they may take with them any object or document received in evidence which requires a physical examination to arrive at a just conclusion.

We are guided by our jurisprudence in Briscoe v. Stewart, 423 So.2d 1198, 1201 (La.App. 4th Cir.1982), wherein the court stated the jury is not allowed to view upon deliberation any document whatsoever just because it has been admitted into evidence. To the contrary, article 1794 provides the submission of written evidence to the jury upon deliberation shall be the exception rather than the rule and shall be allowed only when physical inspection is necessary to arrive at a just verdict. As a precondition to inspection by the jury, a writing must be, at the very least, relevant to some material issue in dispute; beyond that, it must be more probative than prejudicial. Briscoe, supra.

The policy underlying the prohibition of the article is to prevent undue weight being given written documents as opposed to oral testimony. Salemi v. St. Paul Fire & Marine Insurance Company, 339 So.2d 1264 (La.App. 1st Cir.1976). In the instant case, as in Salemi, there were witnesses to testify with regard to the contents of the document, and in addition, the counsel for the defendant was free to submit the service records to the jury for their inspection during the trial; thus, it was not necessary in order to reach a just conclusion for the jury to see the records during deliberation, and article 1794 prohibits the same. Moreover, only the verbal content of the record was relevant to a determination of the outcome of the ease, and there was no need for a physical inspection.

ISSUE THREE

In addressing the third issue, we note that early in the trial a complaint'was made to the trial judge of a juror’s misconduct. The juror was promptly removed from the jury and an alternate substituted. Nevertheless, the defendant argues his case has been prejudiced by the juror’s misconduct. To the contrary, we find the defendant was not deprived of a meaningful jury trial by this misconduct.

Improper behavior by a juror has not been strictly defined by either statute or jurisprudence. Instead, improper behavior must be determined by the facts and circumstances of a particular case. Blandino v. Brown Erection Company, Inc., 341 So.2d 577, 580 (La.App. 2d Cir. 1977). It cannot be determined which party was actually prejudiced by the juror’s remarks since his remarks are not on record. In fact, it was plaintiff’s counsel, and not counsel for the defendant, who brought the juror’s conduct to the attention of the trial court thereby initiating the jur- or’s dismissal from the jury. In any event, the Blandino court held the presence on a jury of a highly opinionated person does not constitute improper behavior so as to preclude the achievement of impartial justice.

ISSUE FOUR

The defendant claims the trial court erred in refusing to give the following special jury charge which was requested by the defendant:

That a seller as distinguished from a manufacturer is not presumed to know the latent defects in a product he sells. (Emphasis added)

The court gave instead the following charge:

A retail automobile dealer ordinarily owes the duty of reasonable inspection of automobiles sold by it according to the standards in the industry, but it is not required to disassemble the automobile or make minute inspections for latent defects. (Emphasis added)

We recognize the trial judge has a duty to charge the jury as to the applicable law and a correlative right to require that the jury consider only the correct law. Haynes v. Baton Rouge General Hospital, 298 So.2d 149, 157 (La.App. 1st Cir.1974). Our jurisprudence, however, indicates it is not error for a trial judge to refuse to give a requested special charge where such charge is included in his general charge. Haynes v. Baton Rouge General Hospital, supra; Morales v. Toye Brothers Yellow Cab Company, 246 So.2d 52 (La.App. 4th Cir.1971). It is necessary only to find the charge given by the court provided the correct principle of law for the jury’s application thereto. Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La. App. 3d Cir.1981); Hanks v. Drs. Ranson, Swan and Burch, Ltd., 359 So.2d 1089 (La.App. 3d Cir.1978). The plaintiff argues that if the law does not require the seller to inspect for latent defects, then, it follows, he is not presumed to know of such defects, and that, therefore, the defendant’s requested jury charge was cumulative and redundant. We find the jury instructions as a whole were clear with regard to the duty owed by the defendant and could not have mislead the jury to believe the presumption of knowledge applicable to Ford Motor Company was likewise applicable to the defendant. Therefore, omission of the requested charge did not deprive the defendant of a meaningful jury trial.

ISSUE FIVE

We now address the final issue of whether the trial court abused its discretion in awarding $25,000 to the plaintiff. We recognize we have a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits, determining whether the trial court has abused its “much discretion” the law accords it in awarding damages. Louisiana Constitution Article 5 § 10(B); Louisiana Civil Code article 1934(3); Reck v. Stevens, 373 So.2d 498, 499-501 (La.1979); Wilson v. Magee, 367 So.2d 314, 315 (La. 1979); Coco v. Winston Industries, 341 So.2d 332, 335 (La.1976). The record must clearly reveal that the trier of fact abused its discretion in making an award before the appeals court will disturb such an award. Coco, supra.

The initial inquiry in determining whether an award of damages is inadequate or excessive must always be directed to whether the trial court’s award for particular injuries and their effects upon the injured person was a clear abuse of the trier of fact’s “much discretion.” It is only after an articulated analysis of the facts discloses an abuse of discretion that an award may, on appellate review, for articulated reasons, be considered either excessive or insufficient; only after such determination of abuse has been reached is a resort to prior awards appropriate for purposes other than determining what would be an appropriate award. Reck v. Stevens, 373 So.2d 498 (La.1979).

Ms. Bourgeois suffered multiple physiological injuries which include fractured coccyx, a bruised chest with resulting costo-chondritis, a possible concussion, and an increased lumbar lordotic curve in her back. She further suffered a cracked tooth which required dental treatment and may result in the loss of her tooth. She alleged she has suffered psychological injuries and testified she suffered from frequent nightmares and received psychiatric treatment for traumatic neurosis. The record also reflects she has received extensive medical and chiropractic care, including treatment for back and rib problems by an orthopedist; treatment for back problems by a chiropractor; treatment by a psychiatrist for emotional problems resulting from the accident; and treatment by a dentist for damage to her tooth and tooth pulp.

On the date of the accident, Ms. Bourgeois was treated at East Jefferson Hospital Emergency Room for possible concussion and pain in the lower back. As she continued with pain in her lower back and developed pain in her rib cage a few days after the accident, she eventually sought medical treatment from orthopedist Dr. Stuart Phillips, a Board-Certified orthope-die surgeon, whose deposition was read to the jury by stipulation. Upon examination, Dr. Phillips found the plaintiff suffered from costochondritis, or tenderness and inflammation in the area where the ribs join the breastbone. He indicated the condition is caused by trauma and that this condition can take years to heal. Upon examination of x-rays, he found the plaintiff had an abnormality in the coccyx or tailbone area. It was probable this abnormality was due to trauma with dislocation and subsequent healing. The trauma-induced abnormality to the coccyx resulted in tailbone tenderness, a painful condition which is relieved by injections of steroids. The doctor indicated this deformity to the coccyx was a permanent condition and the pain from the deformity would last for several years. Additionally, the doctor found Ms. Bourgeois’ “swayback”, an increase lumbar lor-dotic curve in the spine, was caused by trauma and resulted in lumbar pain. The doctor treated the plaintiff on several occasions with injections of cortisone into the tailbone and chest area. He further recommended the plaintiff undergo heat treatment and undertake an exercise program.

Because relief from pain which the plaintiff received as a result of Dr. Phillips’ treatment was transient, she consulted a chiropractor, Dr. Sherwood Beatty, who was qualified by the court as an expert in the field of chiropractic science. The plaintiff complained to the doctor of headaches, dizziness, low back aches, spinal soreness, and tailbone pain upon sitting. Dr. Beatty saw the plaintiff a total of 53 times and treated her with spinal manipulation, spinal adjustment, ultra-sound, and heat therapy, and adjusted her coccyx on two occasions. For the 53 visits, plaintiff was billed a total of $2528.

Dr. Robert Ancira, a Board-Certified psychiatrist, testified on behalf of the plaintiff. The plaintiff complained to the doctor of nightmares in which she envisioned a painful death resulting from the automobile accident; difficulty in sleeping; and fear of driving. The doctor diagnosed the plaintiff’s condition as “traumatic neurosis.” The plaintiff was treated by Dr. Ancira with the drugs Dolene and Valium.

In addition to the loss of past earnings for one week which Ms. Bourgeois missed due to her injury and the $2528 chiropractic bill, Ms. Bourgeois incurred the following debts:

East Jefferson Hospital Emergency Room $253
Dr. Phillips’ Treatment 334
Radiology Lab 42

Thus, she proved special damages in an amount exceeding $3000, and the remainder of, the $25,000 damage award covers past, present and future pain and suffering.

We find the totality of the expert medical testimony amply supports the jury’s finding for general damages and there has been no abuse of discretion. The defendant argues the expert, Dr. Gernon Brown, who was hired on behalf of the defendant, refuted the testimony of the plaintiff’s treating physicians. However, the plaintiff’s treating physician’s opinion is entitled to more weight than the opinion of a doctor who examined the plaintiff for consultation for litigation purposes. See Schouest v. J. Ray McDermott, & Co., Inc., 411 So.2d 1042, 1044 (La.1982).

For the reasons assigned, the judgment appealed from is affirmed, all costs of this appeal to be paid by the appellant.

AFFIRMED.

GAUDIN, Judge,

concurring in part and dissenting in part.

I concur in the foregoing opinion except for the award of $25,000.00. Petitioner sustained relatively minor physical injuries, including a chipped tooth, and returned to work one week after the accident.

The accident occurred on January 5, 1980, and plaintiff did not consult Dr. Robert Ancira, a psychiatrist, until July of 1980; and she did not see Dr. Stuart Phillips, an orthopedist who found a tenderness or inflamation in the area where the ribs meet the breast bone, until June 1, 1981, approximately a year and a half after the accident. Petitioner’s attorney recommended her to Drs. Ancira and Phillips.

The award was based primarily on the medical testimony of these doctors, and also on the testimony of a chiropractor who saw plaintiff 53 times, beginning on September 4,1981. The chiropractor’s bill was $2,528.00, by far the bulk of the special damages.

Accordingly, I respectfully dissent from the award.


author: DUFRESNE, Judge.

text:
    Clare O’Neal SLACK v. Darren J. SLACK.
    No. 84-CA-21.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    Bernard M. Plaia, Jr., Wiley J. Beevers, Metairie, for defendant-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Clare O’Neal Slack, plaintiff-appellant from a judgment awarding joint custody of two minor children to her and her former husband, Darren J. Slack, defendant-appellee. Also at issue is the termination of child support payments to Clare Slack. Because we find no clear abuse of the trial court’s discretion, we affirm both the award of joint custody and the termination of child support.

The parties were married in 1970, and a daughter and son were born of this marriage. These children are now twelve and ten years old. In January 1981, the parties were judicially separated, and a final divorce judgment was rendered in August 1981. By mutual agreement custody of the children was granted to the mother, with reasonable visitation privileges by the father. In November 1981, child support by the father was fixed at two hundred dollars per month for each child.

The present phase of this litigation began in February, 1983, when the mother filed a motion for increase in child support. The father reconvened seeking a reduction in support payments, and further prayed that joint custody be awarded to him and the children’s mother. A plan of implementation was submitted by him whereby the children would spend alternating two week periods with each parent.

After an extensive hearing, the trial judge concluded that the best interests of the children would be served by granting joint custody to both parents according to the father’s plans. He also concluded that the circumstances of the parties, as well as the joint custody arrangement, dictated that no child support be awarded to either parent.

The mother now appeals alleging that:

1.) The award of joint custody is contrary to law and not in the best interests of the children, and;
2.) It was error to terminate child support payments.

We first note that the standard of appellate review in child custody cases is that great weight must be given to the trial court’s decision, and that decision will not be overturned in the absence of a clear abuse of the trial court’s discretion, Stephenson v. Stephenson, 404 So.2d 963 (La. 1981). We also point out that under the present Civ. Code arts. 146 and 157, there is a rebuttable presumption that joint custody is in the best interest of the children. Articles 146(D) further provides that ‘ “joint custody” shall mean that the parents shall, to the extent feasible, share the physical custody of the children.’

In the present case, we find no abuse of the trial court’s discretion in his awarding of joint custody. The custody plan at issue here was submitted by the father and provides an even division of physical custody between the two parents. Basically, the children are to reside with each parent for alternating two week periods. In regard to this plan, the mother contends first that such an arrangement is (‘split custody” rather than “joint custody” as provided by art. 146, and second, that this shuttling of the children back and forth will be detrimental to their well being.

In regard to her first argument, we disagree with her interpretation of the law. As noted above, art. 146(D) defines joint custody as a sharing of the children’s physical custody. It further states that “physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.” In our opinion, the statute obviously contemplates that under appropriate circumstances the children shall reside for a time with each parent. While we agree with the mother that there is no requirement that there be an exact 50-50 sharing of custody, we disagree with her further assertion that there cannot be such a sharing without adversely affecting the best interests of the children. Peters v. Peters, 449 So.2d 1372 (La.App. 2nd Cir. 1984); Adams v. Adams, 441 So.2d 490 (La.App. 2nd Cir.1983).

The second assertion made by the mother in regard to the custody arrangement is that the children’s best interest are not being served. However, on the record before us we cannot say that the trial judge abused his discretion in ordering this plan. Although there are no written reasons for the judgment in the record, it is manifest from the transcript of the proceedings that careful inquiry was made into all of the factors enumerated in art. 146(C)(2).

That transcript shows that both parents are happily remarried, financially sound, and maintain stable homes in proximity to the children’s school and friends. Both also exhibit love and affection for the children, and a genuine concern and willingness to.nurture and guide them as they grow. Both the parents and their present spouses appear to have the physical and moral fitness to rear the children and the present spouses are both willing to undertake the additional responsibilities that joint custody entails. Both parents are in agreement that the children should have a close and continuing parent-child relationship with the other parent, and encourage and facilitate such a relationship.

Finally, under the prior custody agreement, the children spent considerable time on weekends and during vacations with their father and his present wife, with no determinable ill effects to their psychological well being or school work.

On the other hand, the only ostensibly rebuttal evidence to the joint custody plan was testimony by Edith Schulhafer, a social worker. Although she admitted that she had no first hand experience with how joint custody arrangements affect children, she was nonetheless of the opinion that any plan of alternating custody would create adverse anxieties in children. Implicit in her opinion, of course, is that the legislature was wrong in enacting the joint custody statute.

In our opinion, the trial judge did not abuse his discretion in obviously concluding that this general objection to the statute did not rebut the presumption that joint custody is in the children’s best interest.

The mother also urges in brief here that since implementation of the custody plan, the children are being adversely affected by anxiety. Whatever the truth of that assertion, this is not the proper court in which to raise that issue, Cf. La.Civ.Code art. 146(E).

The final issue here is whether the trial court abused its discretion in eliminating child support payments to the mother. The evidence adduced at trial indicates that since the original November, 1981 order of child support, the mother of the children has remarried. The combined income of the mother and her present husband is approximately $58,000 per year. The father and his present wife have a joint income of about $38,000 per year. Considering the expenses of both households as shown at trial, we perceive no abuse of the trial court’s discretion in eliminating child support payments to the mother. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980); Marcus v. Burnett, 282 So.2d 122 (La.1973).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    NATIONAL BENCH ADVERTISING, INC. v. PARISH OF JEFFERSON.
    No. 84-CA-40.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Harvey Green, Metairie, for plaintiff-appellant.
    H. A. Vondenstein, Alvin J. Dupre, Jr., John Brooks, Gretna, for defendant-appel-lee.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal from a judgment of the trial court in a suit for breach of contract holding that the defendant (Parish of Jefferson) had the right to terminate a contract with the plaintiff (National Bench Advertising), because the contract had expired by its own terms.

The formative stages of this matter began sometime in July of 1972, when the Jefferson Parish Council passed an ordinance authorizing the Parish to enter into a contract with John A. Amesbury, Jr., for the exclusive franchise to place benches at various bus stop locations in Jefferson Parish for the purpose of advertising. Subsequent to the passage of this ordinance, the above referenced parties entered into a three year contract. The terms of this contract provided for an option which had to be executed upon mutual consent, which would extend the original contract for an additional three year period.

In November of 1973, the Parish Council approved a resolution authorizing Mr. Amesbury’s Sale and assignment of the original contract to the plaintiff. After the plaintiff obtained the franchise by assignment in September of 1974, the Parish Council, pursuant to plaintiffs written request, extended the franchise for an additional three year period. Plaintiff continued to operate the franchise business past the designated three year period as set out in the contract approved by the Jefferson Parish Council.

During the period from 1978 through 1980, defendant never received any written request for extending or exercising an additional three year option from the plaintiff, therefore defendant asserts that the franchise agreement which existed then was now void of any enforceable provisions.

In February of 1981, the Jefferson Parish Council granted the exclusive franchise for the placement of bus stop benches at various parish locations to Arnaud A. Delle d/b/a Bus Bench Graphics and repealed all ordinances and resolutions which may be in conflict.

The plaintiff was then advised that the franchise had been awarded to another party; to remove its benches, and reminded of the fact that the three year contract extension of September, 1974, had expired for failure to be properly executed.

The plaintiff argues that the bid procedure followed by the Parish of Jefferson in awarding the bus bench franchise to Bus Bench Graphics was invalid and the decision of the trial court is void of any legal validity. We disagree and accordingly, affirm the judgment of the trial court.

Relative to the issue surrounding the invalidity of the bid, we find no error in the Parish procedure. The State law requires only that the proper advertisement take place. See: LSA-R.S. 38:2211, et seq. The Parish notifies parties of prospective bids as a courtesy and then only if that individual has requested to be placed on the Parish’s mailing list.

La.C.C. Art. 1779 states the four requisites of a valid contract:

1.) competent parties,
2.) their consent
3.) a certain object, and
4.) a lawful purpose.

We find each of these elements were met in this case, forming a valid contract or “franchise agreement” between the plaintiff and defendant. The record reveals that the plaintiff failed to execute the option provision within the time period prescribed in the contract.

It is well settled law that a contract between parties is binding and valid between them and the courts are obligated to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. Art. 1945; Rebstock v. Birthright Oil & Gas Co., 406 So.2d 636 (La.App. 1st Cir. 1981) and Pendleton v. Shell Oil Co., 408 So.2d 1341 (La.1982).

The full text of the original contract between the parties dated July 17, 1972 is controlling in this matter. Part 9 of this contract reads as follows:

“9—This exclusive franchise and the rights and privileges herein granted shall remain in force and effect for a term of three years from the 17th day of July, 1972, and may be extended for additional three year periods by mutual consent of the parties hereto upon written request by CONTRACTOR TO PARISH submitted “prior to 90 days before the regular termination date.” (Emphasis added)

As the record reflects prior to the regular termination date which would have been July 16, 1975, plaintiff in accordance with the terms of the contract submitted a written request for a three year extension. On September 5, 1974, the Parish Council, pursuant to plaintiff’s written request, approved Resolution No. 24303 and thereby extended said contract for an additional three year period; said period being July 17, 1975, through July 16, 1978.

Subsequent thereto the record is totally void of any further written extension request by plaintiff. Plaintiff, certainly cognizant of its obligation under the contract as evidenced by its previous written request for an extension, never again submitted a written request for an extension. Therefore on July 16, 1978, the contract between plaintiff and Jefferson Parish terminated under its own terms.

The plaintiff alleges that since the defendant continued to receive and deposit checks from plaintiff during the dormant period of the contract, this would support the proposition that plaintiff and Jefferson Parish mutually consented to a new three year extension of the contract. We disagree. The contract at issue terminated by its own terms. Plaintiff, failed in its own obligation to submit a written request for an extension now seeks to have us extend the contract by finding that the parties somehow implied their intentions to do so. The evidence before us simply does not support such a finding.

What the record does support is that subsequent to the termination of the contract the Parish Council, in full compliance with Louisiana Public Bid Law, sought and obtained new bids and plaintiff simply failed to bid.

It is axiomatic that agreements legally entered into have the effect of law upon the parties thereto, and courts are judicially bound to give legal effect to these agreements according to the true intent of the parties, as generally determined by the words of the contract when these are clear and specific, La.C.C. Articles 1901 and 1945; Snedegar v. Noel Estate, Inc., 438 So.2d 677 (La.App. 2nd Cir.1983). Furthermore, because a court may not impute to the parties the use of language without meaning or effect, some effect must be given to every word or clause in the contract, Lambert v. Maryland Casualty Company, 418 So.2d 553 (La.1982).

We find the franchise contract at issue is unambiguous and imports a clear and understandable agreement between the parties. The plaintiff simply failed to submit a written request implementing the option for an extension as mandated in the contract. Furthermore, we find no legal error in advertisement and bid procedure relative to this matter.

Accordingly and based upon the entirety of this record, we agree with the trial court. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.