text:
    Diana Smith WHIPPLE v. Keith M. WHIPPLE.
    No. 83 CA 0833.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Alan Fishbein, Baton Rouge, for plaintiff-appellant Diana Smith Whipple.
    Ernest A. Kelly, Houma, for defendant-appellee Keith M. Whipple.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Diana Smith Whipple brought this action against Keith M. Whipple seeking to make executory alleged arrearages in alimony pendente lite. From a judgment dismissing her demand, Mrs. Whipple appeals.

Mrs. Whipple filed suit in East Baton Rouge Parish on May 27, 1981, seeking a separation from bed and board. The trial court awarded Mrs. Whipple alimony pen-dente lite in the amount of $1,500.00 per month. Mrs. Whipple obtained a judgment of separation on December 15, 1981, which continued the alimony pendente lite award.

Mr. Whipple subsequently filed suit in Terrebonne Parish seeking a divorce. Mrs. Whipple answered the suit demanding permanent alimony in the amount of $1,500.00 per month. On April 5, 1982, the court rendered judgment granting Mr. Whipple a divorce and awarding Mrs. Whipple permanent alimony in the amount of $1,000.00 per month for a period of four months, subject to a credit for $3,000.00 worth of gold in Mrs. Whipple’s possession.

Mrs. Whipple appealed the judgment of divorce. On February 22, 1983, this court rendered judgment affirming the judgment of divorce and the permanent alimony award. Whipple v. Smith, 428 So.2d 1114 (La.App. 1st Cir.1983). Mrs. Whipple applied to the Louisiana Supreme Court for writs and her application was denied. Whipple v. Smith, 433 So.2d 154 (La.1983).

While the appeal was pending, Mrs. Whipple filed the present suit in East Baton Rouge Parish seeking to make executo-ry the alimony pendente lite payments which she alleges were due subsequent to the divorce decree and while the appeal was pending. The trial court dismissed the suit, and Mrs. Whipple filed this appeal.

Mrs. Whipple contends that the judgment of divorce was not final until affirmed by this court and her application for supervisory writs to the Louisiana Supreme Court was denied, and, therefore, alimony pendente lite continued to accrue pending the appeal.

Mr. Whipple contends that since there is no suspensive appeal from a judgment awarding or terminating alimony under LSA-C.C.P. Art. 3943, the judgment of divorce was executory when it was rendered by the trial court.

LSA-C.C.P. Art. 3943 provides:

“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

As the Official Revision Comments to Article 3943 note, the purpose of this provision is to prevent a spouse from being deprived of necessary support pending an appeal.

In support of his contention, Mr. Whipple relies on Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir.1975). Donica dealt with the same issue involved in this case. There, the wife filed suit for divorce and was awarded alimony pendente lite. The trial court subsequently granted a divorce denying the wife permanent alimony, and the wife appealed. While the appeal was pending, the wife filed a rule to make exec-utory alimony pendente lite payments accruing subsequent to the divorce decree. The trial court granted judgment for the wife, and the husband applied for writs.

On Appeal, this court concluded that the trial court erred in ordering the husband to continue paying alimony pendente lite pending the wife’s appeal since under LSA-C.C.P. Art. 3943 the judgment of divorce terminating alimony pendente lite became executory at the time it was rendered. In support of its conclusion, the court relied on Malone v. Malone, 282 So.2d 119 (La.1973), which held that appeals from judgments denying, modifying, or terminating alimony as well as judgments awarding alimony are governed by Article 3943.

In support of her argument, Mrs. Whipple relies on Morris v. Morris, 426 So.2d 318 (La.App. 2d Cir.1983), writ denied, 433 So.2d 151 (La.1983), for the proposition that the alimony pendente lite continued to accrue pending the appeal of the divorce decree. Morris is also factually similar to the present case. There, the wife filed suit for separation and was awarded alimony pendente lite. The husband then obtained a judgment of divorce denying the wife permanent alimony and the wife appealed. While the appeal was pending, the wife filed a rule seeking to make executory alimony pendente lite accruing subsequent to the divorce decree.

The court in Morris concluded that alimony pendente lite continued to accrue while the appeal was pending, relying on Viser v. Viser, 243 La. 706, 146 So.2d 409 (La.1962). While Viser does stand for the proposition that alimony pendente lite continues to accrue pending the appeal of a judgment of divorce, we note that the court in Viser cited Cotton v. Wright, 193 La. 520, 190 So. 665 (La.1939), as controlling. However, as noted by Judge Sexton in his dissent in Morris, Cotton dealt with the right of the wife to collect alimony penden-te lite accruing before the divorce and had nothing to do with alimony accruing subsequent to the divorce. The court in Cotton recognized that alimony pendente lite terminated with the judgment of divorce. We therefore do not consider Viser, and its misplaced reliance on Cotton, as controlling.

Further, the court in Morris sought to distinguish Donica on the basis that the court in Donica failed to note that it was dealing with “two types of alimony resting upon two separate and independent legal and theoretical bases.” We do not find this distinction persuasive. The purpose of alimony pendente lite is to temporarily, pending litigation, provide for the spouse who does not have sufficient income for his or her maintenance. It is well settled that an award of alimony pendente lite automatically terminates upon divorce. See: Lewis v. Lewis, 404 So.2d 1230 (La.1981).

Here, in the divorce proceeding Mrs. Whipple prayed for and was awarded permanent alimony. If we applied the analysis used by the court in Morris to the facts of this case, we would be forced to conclude that Mrs. Whipple had two valid judgments, one awarding alimony pendente lite and one awarding permanent alimony, which she could execute upon. We note that the courts in Morris and Viser did not have to deal with this issue since the divorce judgment in both of those cases did not award permanent alimony but instead denied the wife permanent alimony.

We therefore conclude that the rule set forth in Donica is the proper interpretation of LSA-C.C.P. Art. 3943. As we noted, the purpose of that provision is to protect spouses from being deprived of necessary support pending appeal, not to allow a spouse who has already been awarded permanent alimony to continue collecting alimony pendente lite while an appeal is pending.

For the above reasons, the judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    LOUISIANA DEPARTMENT OF the TREASURY, BOARD OF TRUSTEES OF the STATE EMPLOYEES GROUP BENEFITS PROGRAM v. Ulysses WILLIAMS, Secretary of the Louisiana Department of Labor.
    No. 83 CA 0841.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Tommy Teague, Baton Rouge, for plaintiff-appellant La. Dept, of the Treasury, Board of Trustees of the State Employees Group Benefits Program.
    Robert L. Roland, Baton Rouge, for defendant-appellee Ulysses Williams, Sec. of the La. Dept, of Labor.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Plaintiff appeals the ruling of the trial court sustaining exceptions of unauthorized use of summary process and n0 cause of action.

Plaintiff, Board of Trustees of the State Employees Group Benefits Program (Board), a state agency within the Department of Treasury, filed a petition for a writ of mandamus against the Secretary of the Louisiana Department of Labor (Secretary), Ulysses Williams. The Board sought an order directing the Secretary to comply with an order of the Board mandating that the employees of the Department of Employment Security (DES), an agency within the Department of Labor, “wishing to be covered by life insurance and accident and health benefits (with the employer contributing one-half of the cost) participate in the State Employees Group Benefits Program rather than be covered by a private insurance policy.”

Defendant filed an answer and exceptions of unauthorized use of summary proceeding, nonjoinder of indispensable/necessary party and no right of action.

The trial court sustained the exceptions of unauthorized use of summary proceeding and no cause of action.

Plaintiff appeals, arguing that the trial court erred in the following respects:

(1) In sustaining the defendant’s exception of improper use of summary proceeding;
(2) In sustaining a peremptory exception of no cause of action;
(3) In considering evidence not admissible on an exception of no cause of action and, in effect, rendering a judgment on the merits in sustaining this no cause of action exception; and,
(4) In determining that the funds used to pay the employer portion of the insurance premium on behalf of the employees of the Department of Employment Security are federal funds.

PACTS

The employees of the Department of Employment Security, an agency within the Louisiana Department of Labor, have been covered for life and accident and health insurance by a policy issued by Bankers Life Insurance Company which has been in effect since October 1, 1955. All other employees within the Louisiana Department of Labor are covered for benefits by the State Employees Group Benefits Program.

On March 3, 1969, Executive Order No. 70 was issued by then Governor John J. McKeithen. Pursuant to this order, the Commissioner of Administration was directed to establish a master group hospital, surgical, major medical and life insurance program for all state employees and to make arrangements for its effective implementation.

Pursuant to this Executive Order, the Commission of Administration did establish a uniform group plan of life and health insurance for state employees. By letter from the Division of Administration dated April 24, 1970, the DES was specifically exempted from the uniform program and authorized to continue the policy then in force.

From 1969 through September of 1979, the State group insurance program was administered by the Division of Administration. Effective September 1, 1979, the administration of the State group insurance program was transferred from the Division of Administration to the Board of Trustees of the State Employees Group Benefits Program.

It is the position of the Board that all state employees who wish to participate in a life insurance and accident and health benefit plan pursuant to which the State of Louisiana pays fifty per-cent of the premium cost must participate in the State Employees Group Benefits Program rather than be covered by a private insurance carrier. At a meeting of the Board on September 28, 1982, a motion was adopted mandating that the employees of the DES participate in the State Employees Group Benefits Program should they desire insurance coverage with the state paying 50% of the premium. This action by the Board was communicated to the Secretary of Labor by letter dated September 30, 1982.

The Secretary of Labor, by memorandum dated October 1, 1982, and by letter dated October 25, 1982, stated that he was opposed to the Board’s attempt to place DES employees under the state operated insurance program.

Thereafter, the Board filed the mandamus action against the Secretary.

IMPROPER USE OF SUMMARY PROCEEDING

In the first assignment of error, plaintiff argues that the trial court erred in sustaining the defendant’s exception of improper use of summary proceeding. Plaintiff contends that this is a proper case for the issuance of a mandamus action in which the use of summary proceeding is authorized.

Plaintiff contends that LSA-R.S. 42:871 through 879 bestows upon the Board the power to adopt and promulgate rules and regulations for the operation of the Board and the administration of the State Employees Group Benefits Program. Plaintiff further contends that the legislative grant of authority to the Board is broad enough to encompass the power to order that a segment of state employees, i.e., employees of DES, participate in the State Employees Group Benefits Program.

A writ of mandamus is issued to compel the performance of a ministerial duty required by law and only in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. arts. 3862 and 3863.

Mandamus is an extraordinary remedy which is used sparingly by the courts to compel something that is clearly provided by law, but only where it is the only available remedy, or where the delay occasioned by the use of any other remedy would cause an injustice. B. of C. of Lafourche v. B. of C. of Atchafalaya, 340 So.2d 600 (La.App. 1st Cir.1976). It is clear that mandamus lies only to compel the performance of purely ministerial duties or to correct an arbitrary abuse of discretion and that it will not be issued in doubtful cases. Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App. 3rd Cir.1974).

In the case sub judice, the trial judge specifically found that relief by ordinary means would be available through the use of declaratory judgment and that the delay involved would not cause injustice. ■We find no error in the ruling of the trial judge on this point.

In addition, we find it doubtful that there is a purely ministerial duty involved in this particular factual situation. A memorandum issued by the Secretary of Labor indicated that his refusal to cooperate was based in part on his doubt as to whether the monies expended by DES for the insurance funding were state or federal dollars and, accordingly, whether the Board had authority to mandate DES participation in the state plan. The Secretary further stated that he was “attempting to get a judgment as to how the monies expended in this department should be categorized — state or federal dollars.” In light of the jurisprudential rule that mandamus will not issue in doubtful cases, we find no error in the ruling of the trial judge on .this point.

EXCEPTION OF NO RIGHT OF ACTION

In the three remaining assignments of error, plaintiff argues that the trial court erred in sustaining the exception of no cause of action.

In the case sub judice, the defendant filed an exception of no right of action. However, according to the record, the exception tried and ruled on by the court was an exception of no cause of action. Under the provisions of LSA-C.C.P. art. 927, either a trial or appellate court on its own motion may notice an exception of no cause of action or no right or interest in the plaintiff to institute suit. Because of certain irregularities, viz., the posture of the instant case and the receipt of evidence prior to the trial court’s noticing the exception of no cause of action, we choose not to review the record on this exception as it is presently constituted. Therefore, we vacate the ruling of the trial court sustaining an exception of no cause of action and remand the case to the trial court.

Accordingly, the ruling of the trial court sustaining the exception of unauthorized use of summary proceedings is affirmed. Further, the ruling of the trial court sustaining the exception of no cause of action and dismissing plaintiffs suit is vacated. The matter is remanded to the trial court for a ruling of the no right of action and further proceedings not inconsistent with the views herein. Assessment of all costs of the lower court and the Court of Appeal shall await final judgment herein.

VACATED IN PART; AFFIRMED IN PART; AND REMANDED.

      . An exhaustive search of the record does not reveal that an exception of no cause of action was filed.

      . See Footnote 1 supra.


author: ALFORD, Judge.

text:
    John W. PHILSON v. DEPARTMENT OF CORRECTIONS, L.T.I. & E.B.R.
    No. 83 CA 0843.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, for appellant.
    Betty Jean Ray and Annette Seng, Asst. Attys. Gen., Dept, of Justice, Corrections Section, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton. Rouge, for Herbert L. Sumrall.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a decision of the State Civil Service Commission terminating appellant, John Philson, from his position as Correctional Security Officer II serving with permanent status at Louisiana Training Institute at East Baton Rouge Parish. By letter dated February 12, 1982, over the signature of L.M. Chustz for John T. King, Secretary of Corrections, appellant was advised that he was being terminated from his position effective that day.

As cause for this action, the letter of removal states that appellant violated the Department of Corrections Employee Rules and Procedure No. 13(b) regarding failure to follow established procedures which resulted in an escape. In support of the severity of the action taken, the letter of removal cites a prior five day suspension for unauthorized watching of television while on duty and for contraband.

On March 12, 1982, appellant, in proper person, filed a notice of appeal wherein he stated that he did not violate any established procedures and that other duties required him to be elsewhere when the escape occurred. A public hearing was held in Baton Rouge on August 25, 1982, before a referee appointed by the commission. In an opinion dated April 8, 1983, the State Civil Service Commission found that the appointing authority had met its burden of proving the charges against appellant. The Commission further found that the efficiency of the public service was impaired because appellant did not properly discharge his responsibilities to the agency he served. We agree.

The Commission made the following factual findings:

On January 21, 1982, appellant worked the 4:00 p.m. to midnight shift at Pine-crest Dormitory along with Corrections Security Officer I Cleveland Tanner. Appellant was a Corrections Security Officer II.
Appellant was responsible for watching the students and for transporting them to and from their destinations. Appellant was also responsible for counting the students and turning in the count to the security building at ten minutes to each hour or more often if necessary. This count was taken to ensure that no students had escaped. If the count comes up short, appellant’s duty was to recount immediately and notify security and the chase team.
Appellant turned in his head count to security at every hour except 8:50 p.m. Around 8:30 p.m., there was a fight in Pinecrest Dormitory. One of the students was injured and appellant transported that student to the infirmary. Appellant left Corrections Security Officer I. Tanner, at the Dorm and thought that Tanner had called in the 9:00 p.m. count. Tanner did not call in the 9:00 p.m. count.
Because appellant had not turned in his 9:00 p.m. count, Laura Turner, Corrections Security Officer in the security building called and requested a count which she received from Corrections Security Officer Tanner.
At 9:50 p.m., appellant notified Burnette Carter, shift supervisor that three students were missing.
Immediately Mr. Carter went to Pine-crest Dormitory and along with appellant he recounted the students. Mr. Carter determined that three students were missing.
Shortly after Mr. Carter arrived at the Dorm, Reginald Parquet, Superintendent, came to Pinecrest Dorm. Mr. Parquet had heard over his portable radio that three students were missing.
Mr. Parquet questioned appellant about the escapes. Appellant told Mr. Parquet that three black males whose names were Carter, Hudson and Bledso, had escaped. Appellant told Mr. Parquet that he did not know how the students had escaped;
Mr. Parquet and several other officers searched the building and discovered that the students had escaped through a window on the first floor of Pinecrest Dormitory.
A subsequent head count of the students indicated that in fact four students had escaped and that one of the students was white. Additionally, one of the three students named by appellant had escaped and the other two students named by appellant were still in the dorm.
The misinformation given by appellant and relayed to JS-9 (Chase Team) caused problems for the chase team. The chase team was searching the Baton Rouge area for three black males, Hudson, Carter and Bledso, when in fact only one of the students named had escaped and one of the escapees was a white male who the search team did not know until some time later was missing.

On appeal, the factual findings of the State Civil Service Cbmmission should not be disturbed in the absence of manifest error. Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied 406 So.2d 626 (La.1981). This court must therefore determine if the facts, as found by the Commission, are supported by the evidence and if the facts justify the actions taken. Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir.1981). We find that both of these conditions have been met in this case.

Appellant first maintains that the referee appointed by the Commission to conduct his hearing was not qualified. Appellant bases this argument on the fact that Article X, Section 12 of the 1974 Louisiana Constitution was amended by Acts 1982, No. 883 § 1, effective October 15, 1982, which imposed the requirement that any referee appointed by the Commission be admitted to the practice of law in this state for at least three years prior to his appointment. We note that under Article X, Section 12, as it appeared at the time of this hearing, the referee appointed by the Commission was a duly qualified official.

It is appellant’s contention that the referee’s experience resulted in less than a full and impartial hearing. We disagree. Appellant chiefly complains that the referee erroneously limited his cross examination of Mr. Carter, appellant’s immediate supervisor on the night in question. We simply note that the line of questions appellant was attempting to pursue had absolutely no relevance to the matter at hand, and thus, appellant was in no way prejudiced by this ruling.

Appellant next maintains that the referee erred in not granting his request for a continuance on the morning of the scheduled hearing. Apparently, appellant had assumed that a co-employee, who Mr. Philson alleged was knowledgeable in the Civil Service Rules, would be allowed to represent him at the hearing. On the day before the scheduled hearing, appellant found out that his representative was not qualified, and thus, he unsuccessfully attempted to obtain counsel.

In refusing to grant the continuance, the referee noted that the Civil Service Rules, along with a proper person letter advising of the right to counsel, had been mailed to appellant. The referee further noted that she herself had spoken and corresponded with appellant concerning the hearing prior to the scheduled date. Although appellant denied ever receiving the above mentioned proper person letter, the referee determined that a continuance would unduly prejudice the appointing authority. We find no abuse of the referee’s discretion in refusing to grant the continuance. Appellant’s removal letter dated February 12, 1982, clearly states, “The appeal must conform to the provision of Chapter 13 of the Civil Service Rules.” Additionally, appellant himself cites- rule 13.19(b), which provides for appellant’s right to counsel, in his request for the continuance. Clearly, appellant simply failed to take appropriate action on his behalf. We further note that Mr. Philson’s chosen representative was allowed to advise appellant during the proceeding.

Appellant finally maintains that the appointing authority failed to meet its burden of proving legal cause for his termination. We disagree. Appellant was charged with violation of Department of Corrections Rule 13(b) which provides: “Failure to follow established procedures which result in an escape, an aggravated assault or destruction of state property.” We are of the opinion that the evidence clearly establishes no manifest error in the findings of fact reached by the Commission, and that those facts support the conclusion that Mr. Philson violated Rule 13(b).

Appellant’s testimony reveals that he was aware that he was the senior officer in charge of Pinecrest Dormitory on the night in question. Further, the testimony of appellant’s ranking officers affirmatively shows that the established procedure was for the senior officer in charge of a dormitory to stay in the facility and send the junior officer on routine duties such as accompanying inmates to the infirmary. Mr. Philson was aware that the inmates had been giving the junior officer some trouble prior to the fight and yet he left this inexperienced officer alone in the dormitory. Additionally, the misinformation relayed by appellant concerning the number, identity and racial characteristics of the escapees further served to thwart the recapture efforts of the chase team.

Having determined that the Commission’s factual findings, and the conclusions drawn from them, are not manifestly erroneous, we must now determine whether the action taken in terminating appellant from his position was justified under the circumstances. We find that the action taken by the Commission was justified. As noted above, appellant had been suspended on a prior occasion for different violations. Given the very serious responsibility of protecting the general public imposed upon the Department of Corrections, we agree in the Commission’s conclusion that the agency can ill-afford to employ an individual' who fails to discharge in an efficient manner the primary responsibilities of his position.

Therefore, for the foregoing reasons, the decision of the State Civil Service Commission terminating appellant’s employment with the Department of Corrections is hereby affirmed. Appellant is cast with costs of this appeal.

AFFIRMED.


author: PONDER, Judge.

text:
    Benton W. ACHORD, Jr. v. Thomas E. SMITH, et al.
    No. 83 CA 0850.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Charles Reid, Amite, Jeff Hughes, Walker, for plaintiff-appellant.
    Allen B. Pierson, Jr., Ponchtoula, for defendant-appellees.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This suit arises from the purported sale of a business known as Hammond Yamaha Equipment Company, Inc. (Yamaha). Plaintiff appealed the judgment denying recovery of a $25,000.00 down payment and a $3,000.00 deposit. The sole issue on appeal is whether appellant is entitled to a refund of the $25,000.00 down payment less brokerage fees and personal expenditures out of the corporate account.

We reverse and render.

Appellant entered into a written purchase agreement with appellee, Thomas E. Smith, to acquire Yamaha. The terms of the agreement provided for a total consideration of $220,000.00, payable as follows: $25,000.00 cash down payment; $10,000.00 on or before six months from the date of sale; the assumption of an existing Small Business Administration mortgage loan on the company building in the amount of $100,000.00; and seller-financed $85,000.00, payable in 126 monthly installments of $1000.00 each, including interest at the rate of eight percent per annum. Appellant placed the $25,000.00 down payment on deposit with the real estate broker.

A few days later, appellant and appellee went to the bank to discuss the assumption. The title to the building remained in appellee’s name and he was the mortgagor on the loan. The facts are unclear regarding whether the banking personnel approved the assumption of the SBA loan by appellant, and, if it was approved, upon what terms. Appellant testified that the bank personnel indicated that financing would not be allowable under the terms of the agreement. Appellee testified that the bank officers stated that the loan could be assumed but that appellee would remain liable under the mortgage. Appellee was agreeable to this proposition.

At this point, appellant took over the operations of the business. A few days thereafter, appellant advised appellee that he could not meet the financial requirements of the original agreement, at which time the parties began to discuss a new business arrangement which would have modified the original agreement to provide for a sale of 61 percent of the corporate stock to appellant. Appellant contends that the new arrangement was contingent upon his lawyer’s approval of the corporate papers that were prepared by appellee’s lawyer. Appellee and his wife signed the papers but appellant and his wife did not. However, appellant continued in the management and operation of the business for about two months. When appellant began to experience financial problems with the business, he notified appellee that he was closing the business and requested a return of the $25,000.00 down payment.

Although we find that there was never a meeting of the minds between appellant and appellee regarding the proposed stock purchase, we find that the original agreement for the purchase of Yamaha was valid and binding. The record does not reveal any evidence which would indicate that the original agreement was abandoned when the parties began to discuss the possibility of a stock purchase.

In effect, appellant’s suit is an action to rescind the agreement to purchase based on the non-occurrence of the suspen-sive condition that appellant would obtain the bank’s approval of the assumption of the SBA loan. Appellant had the implied obligation to make a good faith effort to obtain the bank’s approval. Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir. 1975).

Appellant failed to show that this effort was made or that the assumption of the loan was not available.

The penalty imposed on a buyer who does not make a good faith effort to obtain the financing necessary to fulfill a condition in a contractual obligation is that the condition which was not fulfilled because of the buyer’s fault is deemed waived by the buyer, and the condition is considered as fulfilled. La.C.C. art. 2040, Dapremont v. Crossley, 367 So.2d 127 (La. App. 4th Cir.1979).

By this reasoning, we find that appellant has breached the agreement to purchase.

However, the purchase agreement involved contained no provisions that the deposit was to be treated as liquidated damages or that the deposit would be forfeited upon breach of the contract. Furthermore, appellee failed to reconvene or otherwise assert any allegation of damages. It is elementary that no recovery may be had for breach of contract until damages have been proved. Foreman v, Jordan, 131 So.2d 796 (La.App. 3rd Cir. 1961). A recognized exception to this rule is that a party is not required to specify each item of damages where there is obvious damage but the quantum is not susceptible to accurate proof. Culps v. U.S. Fidelity & Guaranty Co., 206 So.2d 570 (La. App. 1st Cir.1968). In the case at hand, there is no obvious damage and therefore the exception does not apply. Appellee testified that when he returned to the business after appellant left, he was able to show a profit for the year and that he had not even looked at the books for the period that appellant operated the business.

In brief, plaintiff’s counsel urged the solution that plaintiff be given his deposit less the commission of $4000.00 and the personal payments amounting to $1400.00 made from the business.

For the above reasons, the decision of the trial court is reversed and judgment is rendered in favor of plaintiff in the amount of $19,600.00. The costs in both courts are assessed against appellee.

JUDGMENT REVERSED AND RENDERED.


text:
    Cathy HOLLAND v. T.G. & Y. STORES.
    No. 83 CA 0865.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Eric L. Pittman, Livingston, for plaintiff-appellee.
    Alton B. Lewis, Jr., Hammond, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This action for worker’s compensation benefits was brought by Cathy Holland against her former employer, T.G. & Y. Stores Company. The trial court determined that Mrs. Holland was totally and permanently disabled within the meaning of LSA-R.S. 23:1221(2) and the odd lot doctrine. Mrs. Holland was awarded reinstatement of weekly benefits of $72.33 from December 4, 1982, the date benefits had been terminated by T.G. & Y. The court also found that T.G. & Y. had been arbitrary and capricious in terminating Mrs. Holland’s benefits, thus awarding her attorney’s fees of $3,500 and penalties of 13 percent from the. date that each payment became due.

Defendant, T.G. & Y., has appealed, alleging numerous specifications of errors in the trial court. For the sake of judicial economy, we will consider only those necessary to the resolution of this case.

T.G. & Y. primarily contends that Mrs. Holland is not totally and permanently disabled. Mrs. Holland is a forty-one year old female with a seventh grade education. She suffered an injury to her back while moving cases of canned drinks, in the course and scope of her employment for T.G. & Y. on or about September 20, 1980. On October 1, 1980, Dr. John Clifford, a neurological surgeon, performed surgery on Mrs. Holland’s back at the L5-S1 level for correction of a ruptured disc. Dr. Clifford treated Mrs. Holland until April 14, 1982. Mrs. Holland was also examined once on January 19, 1982, by Dr. Herbert K. Plauche, an orthopedic surgeon. Mrs. Holland’s worker’s compensation benefits were stopped on December 4, 1982. As of that date, T.G. & Y. had paid compensation benefits for approximately 115 weeks, as well as all medical expenses incurred by Mrs. Holland in connection with her injury. The instant suit was filed by Mrs. Holland on January 12, 1983.

In his reasons for judgment, the trial court judge found Mrs. Holland to be totally and permanently disabled under the odd lot doctrine. Guidelines for odd lot were set out by the Louisiana Supreme Court in Lattin v. Hica Corporation, 395 So.2d 690 at 693-694 (La.1981):

Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.
The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled, (citation omitted)

In the instant case, the trial judge found that Mrs. Holland suffers pain and is “clearly at a substantial disadvantage in the job market and is unable to find substantial and consistent employment,” thus rendering her totally and permanently disabled under the odd lot doctrine.

Based on the evidence in this case, we must conclude that Mrs. Holland is not totally disabled under either the substantial pain doctrine or the broader odd lot doctrine.

Medical testimony at trial was given by deposition. Dr. Clifford, the treating physician, gave Mrs. Holland a total disability rating of 10 percent. Dr. Clifford restricted her to limited stooping, bending and squatting, with the further limitation that nothing repetitive be done by Mrs. Holland for at least the first couple of years following her surgery. Dr. Clifford further advised that Mrs. Holland not lift anything weighing more than 20-25 pounds. However, it was the opinion of Dr. Clifford that Mrs. Holland could resume work as a sales clerk.

The medical testimony of Dr. Plauche was similar to Dr. Clifford’s. Dr. Plauche gave Mrs. Holland a total disability rating of approximately 20 percent. He noted that Mrs. Holland would have difficulty with any type of occupational or recreational activities that required prolonged sitting, standing or heavy lifting, and he was of the opinion that Mrs. Holland should not lift more than 10-15 pounds. Dr. Plauche also agreed that Mrs. Holland could return to work; however, he advised that she take a 15 minute break every 2 and V2 hours. He also noted that Mrs. Holland’s pain, on a scale from mild to moderate to severe, was of the moderate category.

Testimony as to work available to Mrs. Holland was presented at trial. Mrs. Holland testified that her previous employment included sales girl and cashier at T.G. & Y. in Slidell, Gibson’s and Woolco. Mrs. Holland also stated that she had applied for work at a fast-food restaurant and at a sandwich shop. However, in that she did not pursue these employment leads any further than the initial contacts, she was unable to. say why she was not hired.

Mrs. Holland testified that she contacted her former employer, T.G. & Y., but the manager, Mr. Graves, told her that he had no such thing as “light duty” for Mrs. Holland. However, Mr. Graves testified that he did not recall Mrs. Holland putting restrictions of light duty on her work, and that her physical condition did not enter into his response to Mrs. Holland. Mr. Graves stated that his store had no openings at the time Mrs. Holland applied, which was more than six months prior to trial. Mr. Graves further testified that the restrictions put on Mrs. Holland’s work by Dr. Clifford would not prevent him from hiring Mrs. Holland, and that Mrs. Holland would be employable by T.G. & Y. if there were any openings. He also stated that his store was presently working a fifty year old male sporting goods manager with a back disability.

Randy Beeson, manager of a discount store in Hammond, testified that of the 37 positions in his store, 22 could be filled by persons with the limitations that had been imposed upon Mrs. Holland. Mr. Beeson also stated that his store was presently working an employee with a kidney disorder, one with a slight back disorder, and a fifty-two year old female supervisor with a 20 percent back disability. He further indicated that this supervisor was hired after her back injury, not before.

In summary, the medical testimony clearly indicates that although Mrs. Holland does experience moderate discomfort, both doctors feel that she can return to work. We also note that there is no evidence in the record that Mrs. Holland had been to a doctor for pain after April 14, 1982, which is a full'year prior to the date of trial, April 29, 1983. Nor was there any evidence in the record that Mrs. Holland was taking any pain medications. In worker’s compensation cases where pain is the linchpin to make out a prima facie case for a worker’s classification in the odd lot category, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe. Culp v. Belden Corporation, 432 So.2d 847 at 850 (La.1983). The record as a whole clearly established that Mrs. Holland’s pain does not “appreciably limit the types of work available” to her. Lattin, supra at 693. Accordingly, we are of the opinion that the trial court judge was manifestly in error in determining that Mrs. Holland was totally disabled. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

However, we note that an employee may be deemed partially disabled if she is unable to perform the same duties in which she was customarily engaged when injured, or duties of the same or similar character, nature, or description for which she was fitted by education, training or experience. LSA-R.S. 23:1221(3). There is evidence in the record that some of the previous sales clerk jobs held by Mrs. Holland required her to perform tasks such as stock work which would require stooping, bending, squatting, and possible lifting of objects weighing more than allowable for Mrs. Holland. In fact, Mrs. Holland suffered the instant injury while moving cases of canned drinks, although it is far from clear from the record whether this was one of her normal duties or not. Therefore, we remand with instructions that Mrs. Holland be given the opportunity to produce evidence solely to show whether her usual duties or the duties for her job description at T.G. & Y. did in fact include tasks which would require stooping, bending, squatting or lifting objects of a weight deemed unsuitable to Mrs. Holland b.y virtue of the medical testimony and this opinion. If such evidence is produced, then Mrs. Holland must be awarded partial permanent disability. See Martin v. H.B. Zachry Company, 424 So.2d 1002 (La.1982).

T.G. & Y. also argues that penalties and attorney’s fees were wrongly granted. Under LSA-R.S. 23:1201.2, if the termination of benefits and failure to re-institute payments are found to have been arbitrary, capricious, or without probable cause, the employer may be compelled to pay a penalty of 12 percent of the total amount of the claim, together with all reasonable attorney’s fees incurred by the employee in prosecution of the claim. In our opinion, termination of benefits by the defendant in this case was not arbitrary, capricious, or without probable cause. This section is penal in nature and must be strictly construed; a termination of benefits will not be held to have been arbitrary or capricious where the insurance carrier bases its decision to terminate on competent medical evidence. Martin, supra, at 1008. T.G. & Y. had a reasonable basis for terminating benefits. The reports of the treating physician, Dr. Clifford, plainly indicated that Mrs. Holland could return to work. Accordingly, we reverse the award of penalties and attorney’s fees.

For the foregoing reasons, the judgment of the trial court is reversed and remanded for proceedings consistent with this opinion. Costs of this appeal are taxed to appellee.

REVERSED AND REMANDED.

      . The accident occurred in 1980; therefore, this case is governed by the Worker’s Compensation statute as it stood prior to the 1983 amendments. LSA-R.S. 23:1221(2) then read as follows: For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.

      . LSA-R.S. 23:1201.2 allows penalties of only 12 percent of the total amount of the claim.

      . Cases involving substantial pain are analyzed within the framework of the odd lot doctrine. Vernon v. Aetna Life and Casualty Insurance Company, 442 So.2d 674 (La.App. 1st Cir.1983).

      . The testimony of a treating physician is entitled to greater weight than the opinion of a physician who merely examines the claimant. Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982).

      . The trial judge in his opinion stated that Mrs. Holland had been employed by convenience food outlets as a cook. There is no basis in the record for such a statement. We also note that following her accident, Mrs. Holland attempted to babysit for her sister's two year old child on two occasions but was unable to lift the child.


author: WATKINS, Judge.

text:
    Alice Claire Moreau MEHALIK v. Richard MORVANT, M.D., and The XYZ Insurance Company.
    No. 83 CA 0898.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Cleveland J. Marcel, Jr., Houma, for Alice Claire Moreau Mehalik, appellant.
    H. Martin Hunley, New Orleans, for Richard Morvant, M.D., St. Paul Fire and Marine Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ,
   WATKINS, Judge.

This is an action for medical malpractice brought by Mrs. Alice Claire Moreau Meha-lik against Richard Morvant, M.D., of Thi-bodaux, and the St. Paul Fire & Marine Insurance Company, Dr. Morvant’s medical malpractice insurer. The trial court granted summary judgment, staying proceedings in the trial court until a medical review panel was convoked under the authority of LSA-R.S. 40:1299.41 et seq. We set aside the summary judgment and remand for further proceedings.

Mrs. Mehalik consulted Dr. Morvant about a lump in her breast on March 1, 1979. Over two years later, on March 24, 1981, it was found by another physician that the lump was cancerous, and a mastectomy was performed on April 2, 1981.

On September 3, 1981, Mrs. Mehalik, anticipating the filing of suit by her, sought to have a medical review panel convoked. At first the Deputy Commissioner of Insurance for Medical Malpractice, Emery J. Barnes, indicated the medical review panel would be convoked, but then on or about September 21, 1981, Mr. Barnes indicated by letter that the alleged tort occurred March 1, 1979, at which time Dr. Morvant did not belong to the Patient’s Compensation Fund, and thus was not qualified for coverage under the Medical Malpractice Act (LSA-R.S. 40:1299.41 et seq).

Thereupon, on September 28, 1981, Mrs. Mehalik filed suit in the Seventeenth Judicial District Court, Parish of Lafourche. It is in this proceeding that the judgment staying the proceedings granted on summary judgment was rendered. Counsel for defendant secured a Certificate of Enrollment from the Commissioner of Insurance under date of January 27, 1983, which stated that Dr. Morvant qualified as a health care provider for the alleged tort, as he was insured by St. Paul under a claims made policy effective from October 25, 1979 to October 25, 1983. It will be noted that Mrs. Mehalik did not seek the convocation of a medical review panel until September 3, 1981, within the policy period, as a claims made policy applies to all torts for which a claim is filed within the policy period, regardless of when the tort occurred. Using the certificate and other supporting documents, defendants moved for summary judgment.

It was held in Williams v. St. Paul Ins. Companies, 419 So.2d 1302 (La.App. 4th Cir.1982), writ denied 423 So.2d 1182 (La.1982), that regardless of the policy period the initial surcharge payable by the health care provider must be paid before the occurrence of the alleged tort in order for the health care provider to qualify as such and thus be entitled to convocation of a medical review panel under the Medical Malpractice Act. Cited as authority was LSA-R.S. 40:1299.42A. which reads as follows:

“A. To be qualified under the provisions of this Part a health care provider shall:
“(1) Cause to be filed with the commissioner proof of financial responsibility as provided by Subsection E of this Section;
“(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 49:1299.44; and
“(3) For self-insured, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the commissioner of insurance. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.”

Especially applicable is the second sentence of subparagraph (3), which provides qualification shall be effective when the malpractice insurer accepts payment of the surcharge. Williams held that the Medical Malpractice Act, “which provides for a serious limitation on the right of a victim of medical malpractice to recover for damages”, must be strictly construed, and hence that a health care provider qualifies only upon payment of the surcharge.

We find Williams to be a proper construction of the law. The Medical Malpractice Act, which indicates that the initial surcharge must be paid before the health care provider becomes qualified, clearly indicates the surcharge must have been paid before the tort occurred in order for the Medical Malpractice Act to apply, as was held in Williams.

In the present case, we do not know from the record presented on motion for summary judgment whether or not the necessary surcharge was paid before the date of the alleged tort (March 1, 1979). As we do not know the date the surcharge was paid, and as knowledge of the date of payment of the surcharge is crucial to a determination of whether or not Dr. Morvant was a qualified health care provider and hence fell under the Medical Malpractice Act, we find the trial court issued the present summary judgment contrary to the holding in Williams, supra, and the proper construction of the Medical Malpractice Act. Therefore, although we find the statute somewhat ambiguous, we hold that summary judgment must be set aside, under our construction of the Act, finding the holding in Williams to have been correct.

The judgment of the trial court granting summary judgment staying proceedings pending convocation of a medical review panel is reversed, and the case remanded for further proceedings consistent with this opinion, all costs to be paid by defendants.

REVERSED AND REMANDED.

      . The purpose of the surcharge, which is over and above the insurance premium, is set forth in LSA-R.S. 40:1299.44A(2).

      . 419 So.2d 1302, 1304.


author: COVINGTON, Judge.

text:
    Robert ROBERTSON v. COLEMAN OLDSMOBILE, INC., et al.
    No. 83 CA 0886.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Stephen M. Irving, Baton Rouge, for Robert Robertson.
    Robert L. Kleinpeter, Baton Rouge, for Coleman Oldsmobile Inc.
    Shirley A. Nassif, New Orleans, for Volkswagen of America Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a redhibition suit which was filed by Robert Robertson, plaintiff, against Coleman Oldsmobile, Inc. and Volkswagon of America, Inc., Porsche-Audi Division, defendants, to recover the purchase price, incidental expenses and damages in connection with his purchase of a new 1980 Porsche 911 SC automobile from Coleman Oldsmobile, Inc. in Baton Rouge, Louisiana. Coleman promptly filed a motion for summary judgment of dismissal on the grounds that the automobile was never returned to Coleman for service or repairs and it was never made aware of any defects. The motion for summary judgment was denied, and Coleman filed responsive pleadings, denying any defect, denying that the car had been tendered and asserting offset for use. Volkswagon answered the petition, alleging that any such defects, if any, were due to abusive use of the automobile by the plaintiff. Thereafter, Coleman third partied Volkswagon for indemnification and contribution in the event Coleman was cast in judgment. Volkswagon responded with a third party demand against Coleman, asserting any defect was due to the negligence or fault of Coleman.

The vehicle in question was acquired by the dealer from Volkswagon in March or April of 1980. Subsequently, the car broke down while being test driven by one of the dealer’s mechanics. It was determined that repairs were needed on the differential or rear-end of the car. Because of the delay in obtaining parts to make the necessary repairs, about one year elapsed before the car was repaired.

On May 21, 1981, Robertson purchased the automobile from Coleman after the mentioned repairs had been made. The record shows that the sale was made after disclosure to the buyer of the work on the rear-end of the car, with the service receipts being given to Robertson. At the time of the sale, the car was the previous year model and was of an amethyst or purple color (which was considered a “difficult color to sell”),- so the dealer reduced the price from the list price of approximately $38,000 to the sum of $29,000.

Thereafter, Robertson brought the vehicle to River Road Porsche-Audi several times for maintenance and repairs. On June 15,1981, the car was brought to River Road for the 1000 mile check-up and scheduled maintenance and minor adjustments to the cooling fan and the sunroof. The odometer read in excess of 1800 miles. Two weeks later Robertson returned to River Road complaining of hard shifting into fifth gear and of the cruise control. The odometer reading was about 2900 miles. The next service order was dated July 29, 1981, when the plaintiff returned to River Road complaining of noise when shifting into first gear and squealing belts. The mileage at that time was about 4600 miles.

It was on this occasion that River Road dismantled the transmission and found that one of the gear teeth was broken off. The last repair order is dated August 24, 1981, for repair of the clutch. The odometer registered in excess of 5300 miles. At the time of the trial, the vehicle had in excess of 9000 miles.

After trial on the merits, the trial court rendered judgment in favor of the plaintiff, reducing the price and awarding attorney fees, and in favor of Coleman on its third party demand against Volkswagon. Thereafter, an amended judgment was rendered in favor of plaintiff and against Coleman and Volkswagon in solido in the amount of $2,382.00, plus interest and attorney fees. The judgment further cast the defendants for costs. The court also rendered judgment in favor of third party plaintiff, Coleman, and against Volkswagon for indemnification for the amount for which Coleman was cast in judgment, plus attorney fees and costs. The third party demand of Volkswagon was dismissed.

In his reasons for judgment, the trial judge stated:

The law provides, of course, that a manufacturer is responsible for its products. The law further provides that a dealer is responsible for the sale of products. If it had no knowledge of the problems, then it can only be held for return of the purchase price or a reduction of the price. The preponderance of the evidence in this case indicates that there was some problem, of course, with this vehicle. It just didn’t happen. Although the evidence is sketchy, the Court holds that there was a problem with the transmission at its manufacturing time and therefore the manufacturer is responsible. The Court has not been convinced by a preponderance of the evidence that Coleman Oldsmobile had knowledge of the problem. Of course, River Road is not a party to this suit. River Road did testify that it did some of the warranty work on the vehicle. There were certain facts which some of the witnesses indicated that it might, River Road might be responsible for this matter, but River Road is not a party to this suit. The representative from River Road did state that the automobile was in a rough condition. There was an indication that possibly not all of the problems existing with the automobile were as a result of this transmission difficulty. This is a vehicle with a large purchase price. The Court is of the opinion that in this case the appropriate remedy is a reduction of the price.

Under Article 2520 of the Louisiana Civil Code, a buyer is entitled to recision of the sale if the defect in the thing bought is such as to render it useless or inconvenient to the point that a reasonable buyer would not have bought it in that condition. Peterson v. Coleman Oldsmobile, Incorporated, 393 So.2d 372 (La.App. 1st Cir.1980).

The record does not establish a non-apparent defect in the car existing before the sale with regard to the differential so as to render it useless or imperfect to a great degree where an informed buyer would not have made the purchase. The buyer was fully apprised of the repair to the differential, and the evidence does not show that the differential played any part in the problems with regard to the transmission. The record supports the trial court’s finding that there was a problem with the transmission at the time of its manufacture, which was a non-apparent defect. The evidence conclusively shows that the differential and transmission are connected but are separate component parts or units of the automobile. Robertson testified that he experienced transmission problems from the time he first drove the automobile.

The overall circumstances reflected by the record in the instant case, particularly the extended usage of the vehicle, support our finding that the defects, particularly with regard to the transmission, were those diminishing the utility of the car rather than those rendering it “useless or imperfect” to a non-purchaseable degree. The defects cannot be considered of the magnitude necessary for a recision of the sale. However, the evidence does show that there was a partial failure of consideration in that the utility of the vehicle was diminished because of the defective transmission. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975). In instances where there has been a partial failure of consideration, the court is authorized to grant a reduction in the purchase price rather than a recision. LSA-C.C. art. 2543; Welch v. Community Motors, Inc., 422 So.2d 1196 (La.App. 1st Cir.1982), writs denied 426 So.2d 177, 181 (La.1983). Accordingly, we find no manifest error in the trial court’s conclusion that the latent defective transmission was a manufacturing defect entitling the plaintiff to- a reduction of the price.

Next, the plaintiff contends that the trial court erred in excluding evidence of emotional distress. There is no merit to this contention. The object of the contract by which plaintiff purchased the car from Coleman was not the intellectual gratification of the purchaser; thus nonpecuniary damages, such as emotional distress, as a consequence of nonfulfillment of that object are not recoverable. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976).

Further, the plaintiff argues that the trial court was in error in not awarding him damages for loss of use of his vehicle. There is no merit in this contention. As pointed out above, the plaintiff is entitled to a reduction in price of the Porsche against Coleman and Volks wagon.

One of the principal factors is the cost of repairing the defects. Depending on the circumstances, this may be the only item to consider. However, where warranted, the court may include in the judgment the difference between the sales price and the price that a reasonable buyer and seller would have agreed upon had the defect been known to them at the time of the sale. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974), writ denied 303 So.2d 186 (La.1974).

In the instant case the evidence reveals that the vehicle was repaired several times under warranty at no cost to Robertson. As stated, the trial court found that an award should be made for the cost of repairing the transmission, which was fixed at $2,382.00. We cannot say that it was clearly wrong in this respect. In view of such finding and the fact that this vehicle had been driven some 9000 miles by the plaintiff at the time of the trial, and the other factors discussed above, we ai;e convinced that the plaintiffs recovery should be limited to the monetary damages actually proved. Cloud v. Huffman Motor Company, 416 So.2d 266 (La.App. 3rd Cir.1982). Cloud does not make an award for “loss of use” as plaintiff suggests on appeal. The Court in Cloud awarded the plaintiff a sum for “loss of income” during “down time” on a tractor truck which he used in his business of hauling sand and gravel. Robertson has established no such damages in the case at bar.

The next issue presented by the plaintiff is whether the trial court erred in excluding opinion testimony of Virgil Davis, Jr., the used car manager of Coleman Oldsmobile, Inc. ' We do not believe this was error inasmuch as Davis was not qualified as an expert; and as a lay witness, he is not permitted to express an opinion as to whether the repairs made to the Porsche were the “most extensive necessary” on a new automobile. Taylor v. Roach, 302 So.2d 327 (La.App. 1st Cir.1974). In any event, we find no harm or prejudice sufficient to mandate a reversal resulting from the court’s refusal to allow such an opinion in evidence.

Turning now to the issues raised by Coleman on appeal. Coleman objects to having been adjudged solidarily liable with Volkswagon, contending that it was not afforded an opportunity to repair the defective transmission. The trial court treated this matter as an action to reduce the price of the. car rather than a recision of the sale. The courts have consistently held that tender for repair is not a prerequisite to an action for reduction of price. See Boeneke v. Trotter, 426 So.2d 230 (La.App. 1st Cir.1983), and the cases therein cited.

Coleman also argues that its attorney fees on its third party demand against Volkswagon should be increased because of the work required in this appeal, having to prepare and file a brief in this Court in this matter.

The return date was August 5, 1983, and the record was lodged on that date. The answer, requesting additional attorney’s fees for the work on appeal, was not filed until September 21. Under C.C.P. art. 2133, the answer was not filed timely and we cannot grant the relief requested therein.

Volkswagon objects to having to indemnify Coleman. Having concluded, as did the trial court, that the problems with the Porsche automobile resulted from a manufacturing defect, the dealer is clearly entitled to indemnification under Article 2531 of the Louisiana Civil Code. In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any loss sustained by the seller. Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La.App. 2nd Cir.1980).

For the above reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be shared equally by all parties, one-third to each.

AFFIRMED.


text:
    Arnold PECK v. TG & Y STORES CO.
    No. 83 CA 0916.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      William C. Shockey, Baton Rouge, for plaintiff-appellant Arnold Peck.
    John Swanner, Baton Rouge, for defendant-appellee TG & Y Stores Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a workers’ compensation case. Plaintiff, Arnold Peck, seeks benefits for partial, permanent disability, and statutory penalties and attorney fees against his employer, TG & Y Stores Co. From a judgment dismissing his claims at his costs, plaintiff appeals. For reasons set out below, we affirm.

The issues are': (1) Was Peck disabled beyond June 22, 1982, the date compensation payments terminated? (2) Is plaintiff entitled to statutory penalties and attorney fees?

The record shows that Arnold Peck was injured on July 1, 1981, within the course and scope of his employment as assistant manager at the TG & Y Store on Perkins Road in Baton Rouge, when he twisted his left knee while assisting in the unloading of merchandise from a delivery truck. The injury was subsequently diagnosed by the treating physician, Dr. Kenneth Cranor, as a deranged medial meniscus. Almost two months after the injury, the plaintiff underwent an arthroscopic partial medial menis-cectomy.

Shortly after surgery, Dr. Cranor estimated a five per cent permanent physical impairment of the left leg, and considered Peck able to return to work, with certain motion and weight-lifting limitations.

About six months after surgery, Dr. Cra-nor referred Peck to Dr. John Thomas, an orthopedist, for evaluation. Dr. Thomas estimated that the plaintiff would “qualify for a 5% permanent physical impairment and loss of physical functions secondary to the medial meniscectomy.” He also was of the opinion that Peck would “qualify for an additional 5% permanent physical impairment and loss of physical function on the basis of the changes consistent with chon-dromalacia which cause squatting, stair climbing, and other knee bending activity difficulties.”

The plaintiff was also referred to a vocational rehabilitation clinic for evaluation. The specialist considered that Peck would have difficulty performing certain tasks at TG & Y, such as lifting merchandise and stocking shelves.

Following his release by Dr. Cranor, Peck began working as assistant manager at Drake’s Salad Bar for Capital Area Salad Bar, Inc., where he was still employed at the time of the trial. Testimony was that work at the salad bar is less- demanding than his previous job, and consists of supervision, greeting customers, helping as bus boy and cleaning the premises at closing time. The plaintiff testified that his knee hurt constantly and that he did not think he could do the work at TG & Y any more.

After considering the testimony, depositions and other evidence, the trial judge concluded:

“In my opinion, Mr. Peck has not proved to me by a preponderance of the evidence that he has or is partially disabled and/or that to do the work that he was doing at TG & Y would cause him substantial pain. It’s an element that’s necessary. I just don’t feel that it’s been proven by a preponderance of the evidence in this case.”

DISABILITY

The first issue before us is whether the trial court erred in finding that the plaintiff was not entitled to benefits for disability. The basic issue in this respect is whether the trial court was clearly wrong in determining that Peck could perform the duties of his former occupation, or same or similar employment without working in substantial pain.

In order to be compensable, the pain suffered by a claimant must be substantial. “A claimant will not be held to be disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident.” Culp v. Belden Corporation, 416 So.2d 1311, 1314 (La.App. 3rd Cir.1982), aff’d 432 So.2d 847 (La.1983). The residual pain or discomfort in such a circumstance will be considered disability only if it is substantial or appreciable pain. See Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). Whether a claimant’s pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3rd Cir.1981), writ denied 407 So.2d 735 (La.1981).

While we recognize that in workers’ compensation cases the law is to be liberally construed in favor of the employee, the plaintiff is required to prove the facts by a preponderance of the evidence and with the same legal certainty as required in any other civil case. Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3rd Cir.1982).

In cases of this nature it is the totality of the evidence, medical and lay, which must be examined by the trial court in making its disability determination. It is the trial judge’s function to assess the weight to be accorded the evidence, both medical and lay testimony. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

On appellate review, the trial court’s factual findings concerning work-related disability should be given great weight and should not be disturbed where the evidence before the trier of fact supports a reasonable factual basis for the trial court’s findings, unless clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979). The trial court found that the claimant had failed to prove that he was partially disabled or that doing work similar to that he performed at TG & Y would cause him substantial pain. We accede to the fact-finding role of the trial judge in this respect, because we are unable to conclude that the trial court’s finding of no disability is clearly wrong.

PENALTIES

Appellant contends he is nevertheless entitled to penalties and attorney fees as a consequence of defendant’s arbitrary and capricious termination of benefits. Since the court found that the claimant was not partially, permanently disabled at the time the employer discontinued compensation payments to him, the employer was justified in its termination of benefits. Moreover, the treating physician expressed his opinion that the plaintiff was able to return to work.

We note that Dr. Cranor considered that Peck had reached his current level of rehabilitation at least as early as March, 1982. The plaintiff was paid compensation benefits through June 22, 1982. We see nothing arbitrary or capricious in the employer’s conduct, especially in light of the fact that compensation was paid to the employee for some fifty weeks while he was not working. We find no error in the lower court’s refusal to hold the employer responsible for statutory penalties and attorney fees. Fielder v. Triple S. Masonry, 438 So.2d 642 (La.App. 2nd Cir.1983).

For the reasons assigned, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.


author: COLE, Judge.

text:
    Marlys Ann Cartie LEGENDRE v. Ray Charles LEGENDRE, Sr.
    No. 83 CA 0939.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Stephen Caillouet, Thibodaux, for plaintiff and defendant in rule Marlys Ann Car-tie Legendre.
    F. Smith Knobloch, Thibodaux, for defendant and plaintiff in rule Ray Charles Legendre, Sr.
    Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   COLE, Judge.

The issue in this domestic case is whether or not defendant showed a change in circumstances so as to justify a reduction in alimony and child support.

The following facts led to this litigation. Plaintiff Marlys Legendre and defendant Ray Legendre were married on May 25, 1956 and divorced on April 28, 1978. The judgment of divorce contained the following conditions.

1.) Custody of the two minor children (Ray Legendre, Jr. and Paul Legendre) was awarded to Mrs. Legendre.
2.) Mr. Legendre was ordered to pay $200 a month child support, such support to continue without reduction until the younger of the minor children reaches majority.
3.) Mr. Legendre was ordered to pay to Mrs. Legendre $200 a month alimony until April 1979, at which time the amount was to be reduced to $150.
4.) Mrs. Legendre and the two minor children were to continue living in their present home, rent free, and if forced to leave that home, Mr. Legendre would provide them with a comparable home at his own expense.
5.) Mr. Legendre was to be responsible for all medical expenses of the minor children and was to maintain hospitalization insurance as well as pay for any medical expenses incurred by Mrs. Legendre prior to the date of the judgment.
6.) Mr. Legendre was to pay to Mrs. Legendre one-half of any raise in pay he should receive.

Mr. Legendre remarried approximately one month after the divorce was granted and shortly thereafter a child was born of that marriage.

In March of 1983 Mr. Legendre filed a rule to reduce alimony' and child support, alleging his financial circumstances had changed in several ways. One, a demotion in his job position had reduced his salary. Two, as a result of this demotion he had lost the use of the rent-free house in which his former wife resided. Three, he had financial obligations associated with his new wife and child. Four, one of the minor children, Ray Legendre, Jr., had reached the age of majority. Five, Mr. Legendre had incurred a substantial amount of medical expenses. He alleged further that Mrs. Legendre was capable of seeking employment and therefore the permanent alimony should be decreased.

Mrs. Legendre responded with a rule to increase alimony and child support, alleging an increase was necessary if she was forced to move from her rent-free home.

A hearing was held and the parties testified about their financial conditions. After hearing the evidence the trial court rendered judgment maintaining the child support at $200 a month, until the minor child, Paul Legendre, reached majority. The court ordered further that Mr. Legendre continue to pay alimony of $150 a month. The judgment also ordered Mr. Legendre to provide a house comparable to the one in which Mrs. Legendre presently resided and to continue to pay for all medical and dental expenses of the minor child. Mr. Legendre filed this appeal.

Appellant contends the court erred in refusing to decrease the alimony and child support in spite of evidence showing a change of circumstances and also in awarding alimony in an amount greater than one-third of his income.

We find no merit in several of the “changes in circumstances” alleged by appellant. His testimony concerning medical expenses was vague and inconclusive, therefore we conclude he failed to prove any change caused by such expenses. The fact that he has lost the use of the rent-free house cannot truly be considered a “change” because it was an occurrence contemplated by the parties and provided for in the judgment. Likewise, the fact that one of the children has reached the age of majority is also not a “change in circumstances” because this event was also anticipated and dealt with in the judgment.

However, we find appellant showed a significant change in circumstances by the rather serious reduction in wages.

Appellant testified his former salary had been $1,333.00 per month, guaranteed. At the time of the hearing, he had been working at his new position for approximately one month and was paid $4.72 an hour with no guarantee of the number of hours he would be allowed to work. (His new position was that of tractor driver and his hours of work were dependent upon the weather.) Pay stubs from the month prior to the hearing were introduced and showed a gross pay of $901.52.

The trial court acknowledged a change in circumstances when he commented in his oral reasons for judgment that appellant had “... suffered a severe financial set back in his employment....” Because of the significant change in circumstances appellant is entitled to a reduction in the amount awarded.

Appellant argues that the alimony award exceeds one-third of his income in that he has .been ordered to pay $150 a month in alimony in addition to providing a house comparable to the one in which his minor child and former wife currently reside. (Evidence at trial established such a house would cost approximately $200 a month.) He argues he will be paying a total of $350 as alimony, which is more than one-third of his income. See, La.Civ. Code art. 160. We disagree. The house is provided for his minor child as well as for his wife. So at least until the time the child reaches majority, the obligation to provide a house is a part of his child support obligation. His argument may have merit when his obligation to support the child terminates, at which time he may seek modification from the trial court.

Appellant’s final argument is that Mrs. Legendre is capable of working and therefore the alimony should be decreased. Certainly "a wife’s earning capacity is one factor to be considered in determining the entitlement and amount of alimony. La. Civ.Code art. 160. Mrs. Legendre testified she has an eighth grade education, was 49 years old at the time of the hearing and had been employed only occasionally as a worker at a voting poll. She had spent the 21 years of her marriage as a homemaker and as a mother, raising three children. She has no income other than the $150 a month alimony and $200 a month child support. She testified she had recently been looking for work at local fast-food outlets but had not found a job. She does not own an automobile and must rely on friends to provide transportation.

The trial court did not address this issue. We conclude Mrs. Legendre’s earning capacity is extremely limited. Her age, her lack of training and education, her lack of job experience and her transportation problems put her at a severe disadvantage in a competitive job market. Therefore, we find no merit in appellant’s argument that the alimony should be reduced because of her lack of employment. Should she later be successful in her attempt to obtain a job, appellant can request that the trial court reconsider the situation.

For these reasons, considering the financial circumstances of the parties, we amend the judgment of the trial court to provide that appellant Ray Legendre Sr. pay child support in the sum of $140 a month until the minor child reaches the age of majority. In all other aspects, the judgment is affirmed. Costs of this appeal are to be paid by appellee.

AMENDED IN PART; AND AS AMENDED, AFFIRMED.

      . Mr. Legendre was employed on a sugar plantation. A benefit of his former position as supply room clerk was two rent-free houses located on the plantation grounds. He and his new family resided in one; his son and former wife resided in the other.

      . The trial court commented that the judgment was the result of an agreement between the parties.


author: SAVOIE, Judge.

text:
    Laurence J. DAUPHINE, Jr. and Diana L. Dauphine v. F.W. WOOLWORTH CO., et al.
    No. 83 CA 0948.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Richard L. McGimsey, Baton Rouge, for plaintiff-appellant Diana L. Dauphine.
    Grayson H. Brown, Baton Rouge, for defendants-appellees F.W. Woolworth Co. and Travelers Ins. Co.
    A. Michael Dufilho, Baton Rouge, for Kinney Shoe Corp.
    Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiffs, Laurence J. Dauphine, Jr. and Diana L. Dauphine, appeal the trial court’s dismissal of their products liability suit as to defendants, F.W. Woolworth Co. and The Travelers Insurance Company, insurer of F.W. Woolworth Co.

Plaintiff, Diana L. Dauphine, an employee of F.W. Woolworth Co., purchased a pair of shoes at her place of employment. The shoes were manufactured by Kinney Shoe Corporation. As she was leaving work several days later, the heel of one shoe broke, causing her to fall down a flight of stairs. She was injured as a result of the accident.

In a separate suit, plaintiffs settled Diana’s workmen’s compensation claim with Woolworth and Travelers, the basis of that claim being that she was injured during the course of her employment. There remains this claim in products liability against Woolworth, Travelers and Kinney.

Woolworth and Travelers filed a motion for summary judgment on the grounds that workmen’s compensation, specifically La. R.S. 23:1032, provides an exclusive remedy for an employee. The trial court granted the motion, dismissing the suit against Woolworth and Travelers. Plaintiffs appeal that judgment.

Plaintiffs assert that the trial court erred in granting defendants’ motion for summary judgment because their claim does not fall under the exclusivity of workmen’s compensation provided by La.R.S. 23:1032. Plaintiffs contend that this claim is not subject to the exclusivity of La.R.S. 23:1032 since it does not arise as an employee/employer relationship, but rather as a buyer/seller relationship.

This is a suit for damages based upon fault, whether it be titled products liability or ordinary tort. Accordingly, we see no justification for appellants’ claim that La. R.S. 23:1032 should not be applied.

The wording of La.R.S. 23:1032 is clear and unmistakable that an action in workmen’s compensation is the exclusive remedy of an employee against his employer. Braud v. Dixie Machine Welding & Metal Works, Inc., 423 So.2d 1243 (La.App. 5th Cir.1982), rehearing denied, January 17, 1983; writ denied, 430 So.2d 77, 78 (La.1983); Tomasich v. United States Fidelity & Guaranty Company, 415 So.2d 1002 (La.App. 4th Cir.1982), writ denied, 420 So.2d 446 (La.1982). There are two specific exceptions to the foregoing rule provided by the statute, neither of which is applicable to this case. Therefore, the liability of Woolworth and Travelers is limited to that provided by the workmen’s compensation law. The workmen’s compensation claim has been settled by the parties. Thus, the trial court’s dismissal of the suit pursuant to the motion for summary judgment was proper.

For the above and foregoing reasons, the judgment of the trial court is, therefore, affirmed. Costs are to be borne by appellants.

AFFIRMED.

      . "The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word 'principal' shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

        “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”


text:
    QUALITY MANUFACTURING CO., INC. v. DIRECT FACTORY STORES, INC.
    No. 83 CA 0958.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Larry Becnel, New Orleans, for plaintiff-appellant.
    Page McClendon and Tom W. Thornhill, Slidell, Frank Wittmann, Gulfport,' Miss., for defendant-appellee.
    Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiff, Quality Manufacturing Co., Inc., appeals the dismissal of its suit for past due rent against defendant, Direct Factory Stores, Inc.

Plaintiff leased its building to defendant in February, 1981. The lease agreement was not reduced to writing until June, 1981. Under the terms of the lease, defendant was to pay as rent ten per cent of the net sales for each month. In April, 1982, a provision was added to the lease which provided a minimum guaranteed rental of $2,000.00 per month.

Until October, 1982, the amount tendered each month greatly exceeded the $2,000.00 minimum. In October and November, however, defendant tendered $2,000.00, stating that ten per cent of the net sales for each month was less than $2,000.00. Plaintiff filed suit in December, 1982, for past due rent, alleging, among other things, that defendant had not paid the amount due for October and November.

Defendant filed a peremptory exception, alleging that the petition failed to state a cause of action and moved that the suit be dismissed. After a hearing on the exception, the trial court granted the motion and dismissed plaintiffs suit. Plaintiff appeals.

Plaintiff alleges that the trial court erred in sustaining the exception of no cause of action and dismissing the suit.

The peremptory exception of no cause of action questions whether the law affords any remedy to the plaintiff under the allegations of the petition. If a remedy is provided, the exception must be overruled. The exception is triable solely on the face of the petition and any attached documents. No evidence may be introduced in support of the exception. La.C.C. P.art. 931. All well-pleaded facts are accepted as true and any doubts are resolved in favor of the sufficiency of the petition. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir.1977).

In paragraph XIII of the petition, plaintiff alleges that defendant's net sales for October and November, 1982, were at least $65,000.00 each month. Therefore, plaintiff claims defendant is liable to plaintiff for the sum of $13,000.00 for the two months rent.

We agree with plaintiff that these pleadings state a cause of action against defendant, regardless of the probabilities of ultimate success. The law clearly provides a remedy to plaintiff under the facts outlined above. Since all well-pleaded facts must be accepted as true and any doubts resolved in favor of the petition, the exception must be overruled. Accordingly, we find that the trial court erred when it sustained defendant’s exception of no cause of action.

For the foregoing reasons, the judgment of the trial court is reversed. The exception of no cause of action is overruled and this case is remanded for further proceedings. Defendant is to pay all costs of this appeal.

REVERSED AND REMANDED.


text:
    Ronald E. JERGINS v. Marie Elaine Seay JERGINS.
    No. 83 CA 0959.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Edward A. Shamis, Jr., Slidell, for plaintiff, appellant.
    Walter P. Reed, Covington, for defendant, appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by the husband, Ronald E. Jergins, from a judgment on a rule to determine fault and to set alimony for the wife, Marie Elaine Seay Jergins. The trial judge determined the issue of fault, and found that the husband was at fault and the wife was free from fault. The court, although finding the wife not at fault, and, thus, entitled to alimony, decreed that “no award for alimony be made at this time against Ronald Eugene Jergins and in favor of Elaine Marie Seay Jergins.” Other incidental matters were adjudicated in the rule, but they are not before the Court at this time.

On appeal, the husband contends that the trial court erred in finding him at “fault” and in finding his wife was “without fault.” In this respect, appellant contends that the evidence in the record does not support the judge’s finding that he was guilty of habitual drunkeness. There is no merit to this contention. Both the wife and the husband’s daughter testified to his habitual intemperance and his staying out until the early morning hours. The lower court found this drunkeness to be the basic cause of the breakup of the marriage. The record does not support the husband’s argument that there was a reconciliation.

The key question, of course, is whether Mrs. Jergins was “without fault.” It is only the spouse who has not been at fault who may be entitled to alimony. LSA-C.C. art. 160. To be considered “fault,” the spouse’s misconduct must be of a serious nature and of an independent contributory cause of the breakup of the marriage. “Fault” which will preclude an award of permanent alimony must be such conduct as would entitle a spouse to a separation or divorce. Adams v. Adams, 389 So.2d 381 (La.1980). The meaning of without fault within the context of Article 160 of the Louisiana Civil Code is not synonymous with being totally blameless in the marital discord. Pearce v. Pearce, 348 So.2d 75 (La.1977). The basis for Mr. Jer-gin’s contention that his wife was at fault is that she denied him sexual relations. In order for denial of sexual relations to be considered cruel treatment or fault within the context of the codal grounds, such conduct must be unjustifiable and persistent. Phillpott v. Phillpott, 285 So.2d 570, 572 (La.App. 4th Cir.1973), writ refused 288 So.2d 643 (La.1974); Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir.1977). This rule was reaffirmed by our Supreme Court in Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).

In the instant case the record is void of any evidence that Mrs. Jergins was persistent in her refusal of sexual relations. She described her refusal as occasional, which she attributed to his drunkeness. Although Mr. Jergins disputed his wife’s testimony, creating a factual dispute in the record regarding the wife’s refusal of sexual relations, the trial judge chose to believe the wife’s testimony. We find no abuse of the much discretion afforded the trial judge in determining fault or lack thereof in the instant case. Pearce v. Pearce, supra. Our review of the record convinces us that Mrs. Jergins was not guilty of any serious misconduct which was an independent contributory cause of the breakup of the marriage. She was not legally at fault.

For the reasons assigned, the judgment of the district court is affirmed at the appellant’s costs.

AFFIRMED.


text:
    C. Wayne NORWOOD v. J. Edward LAYRISSON, Sheriff.
    No. 83 CA 0965.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Larry G. Starns, Denham Springs, for plaintiff-appellant.
    Dawn Barrios, New Orleans, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The plaintiff, C. Wayne Norwood, brought this suit against J. Edward Layris-son, Sheriff and Ex Officio Tax Collector of Tangipahoa Parish, in his capacity as the sole voting member of the Law Enforcement District of the Parish of Tangipahoa and of the Sheriffs Department for the Parish of Tangipahoa, seeking damages for the alleged unconstitutional increase in plaintiff’s ad valorem taxes from $75.34 for 1981 to $85.12 for 1982. The defendant, Sheriff Layrisson, filed several pretrial exceptions, including a Peremptory Exception of Peremption and a Motion for Attorney’s Fees. The trial court dismissed plaintiff’s suit on the grounds of peremption, and awarded defendant $1250.00 in attorney fees on the grounds the suit was frivolous. After a thorough review of the facts and applicable law, we affirm the action of the trial court.

The facts surrounding this controversy are not in serious dispute. Sheriff Layrisson serves as the sole voting member of the Law Enforcement District and the Sheriff’s Department for Tangipahoa Parish and as such has the authority to raise or lower certain ad valorem tax millage for the Parish in order to provide funds for operating the Sheriff’s office. On September 9, 1982, Sheriff Layrisson conducted a public hearing, called pursuant to a notice attached to the courthouse door the previous day. The testimony showed that the notice was posted more than 24 hours prior to the scheduled hearing. When Sheriff Layrisson opened the meeting, only his executive assistant and a local newspaper reporter were present. After a discussion of the budgetary needs of the Sheriff’s office, a coffee break was taken and the reporter left. Thereafter, the meeting was reconvened with Sheriff Lay-risson and his executive assistant. The minutes reflect that the reconvened meeting began after the coffee break and that a resolution setting the 1982 millage was adopted at that meeting.

On February 25, 1983, plaintiff brought this suit alleging a violation of LSA-R.S. 42:4.1 et seq., the Open Meeting Law. LSA-R.S. 42:9 provides:

Any action taken in violation of R.S. 42:4.1 through R.S. 42:8 shall be voidable by a court of competent jurisdiction. A suit to void any action must be commenced within sixty days of the action.

The action this statute refers to is the resolution of September 9, 1982, the ad valorem millage. This time limitation has been held to be peremptive period so that plaintiff’s failure to file his suit within the sixty days allowed by the statute bars the action forever. Kennedy v. Powell, 401 So.2d 453 (La.App. 2nd Cir.1981), writ denied 406 So.2d 607 (La.1981). It is clear from the facts of the present case that plaintiff’s suit was untimely, and hence the trial court correctly maintained defendant’s exception of peremption.

The trial judge awarded the defendant $1250.00 attorney fees on the grounds that this is a frivolous suit under LSA-R.S. 42:11(C). Since we find that there was no evidence of non-compliance with the statute and the suit was brought without substantial justification, the trial court correctly awarded attorney fees, which we find are reasonable.

For the reasons assigned, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.