author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Jack R. ALLEN.
    No. 82-KA-1505.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Ronald Loumiet, Patrick C. Leitz, David C. Loeb, Stephen T. Wimberly and William C. Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Jack R. Allen was indicted for negligent homicide, a violation of R.S. 14:32. Defendant was found guilty as charged and now appeals this conviction.

On October 23, 1980 Jack Allen and his business partner arrived at the Pier 90 Restaurant and Bar at approximately 4:00 p.m. to make some business telephone calls. Allen’s partner left at about 9:00 p.m. and Allen remained until approximately 3:00 a.m. Defendant stated that he consumed four or five beers and one glass of creme de menthe during this time, but that he did not have any alcoholic beverages after 11:00 p.m.

Upon leaving Pier 90, defendant drove his pickup truck eastbound down Lapalco Boulevard. At the same time, Mark Page was driving his Toyota automobile westbound on Lapalco Boulevard. Just past the intersection of Lapalco Boulevard and East Drive the two vehicles collided. According to the accident investigation and reconstruction expert, defendant’s truck traversed into the oncoming lane and hit Page’s car head-on.

Defendant testified that he saw oncoming headlights which he believed were in his lane and he tried to swerve. Page, the other driver, was pronounced dead on arrival at a local hospital from multiple injuries. Defendant was arrested at the accident scene by Officer Dufrene.

Dufrene testified that his initial observation of Allen indicated intoxication. He observed that the defendant was “unbalanced. He swayed a bit.” His eyes were “glassy — somewhat bloodshot.” After placing defendant under arrest, Dufrene read the Miranda rights to him and asked if he would submit to a photoelectric intoximeter test. Defendant agreed.

Dufrene transported defendant to a correctional center for booking and testing. Defendant was again advised of his rights and advised of the consequences of refusing to take the test. At this time, the defendant refused to take the test and refused to sign the form indicating his refusal to take the test. Defendant did consent to take the field sobriety test, but was unable to perform the maneuvers satisfactorily.

Allen testified that he had been up for almost twenty-four hours at the time of the accident, and that his staggering and swaying were a result of the accident. He also blamed the accident for his poor performance on the sobriety test. The defense argued that the victim entered a curve in the roadway too quickly and crossed over the center line, causing defendant to swerve. When the victim corrected his swerve, he hit defendant head-on in the victim’s original lane.

Assignments of Error Nos. 1 and 5

Defendant contends that the trial court erred in denying his motions for a directed verdict of acquittal and for a new trial.

Directed verdicts upon the state’s completion of its case in chief cannot be entered in jury trials, but only in bench trials. C.Cr.P. 778. The correct vehicle for asserting defendant’s argument that the state failed to prove an essential element of the crime is the motion for a post verdict judgment of acquittal, C.Cr.P. 821, or the motion for a new trial, C.Cr.P. 851.

Defendant argues that the state’s failure to prove driving while intoxicated constituted a failure to prove criminal negligence, an essential element of the crime of negligent homicide, and that defendant is entitled to a new trial. Defendant’s argument is not persuasive. Violation of a statute or ordinance is not the only means of proving criminal negligence, and is, in fact, only presumptive evidence of such negligence. R.S. 14:32. The entirety of the evidence presented by the state must be considered. State v. Hargrave, 411 So.2d 1058, 1062 (La.1982).

“... In order to convict a defendant of negligent homicide, however, the state must prove (1) that defendant was criminally negligent, i.e., that there was such disregard of the interest of others that the offender’s conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances; and (2) that a killing resulted from this conduct....” State v. Fontenot, 408 So.2d 919, 921 (La.1981).

The standard of review, as set forth by the United States Supreme Court and adopted by this court, is whether “upon the record adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Johnson, 426 So.2d 95, 101 (La.1983).

To prove criminal negligence, the state’s evidence included Officer Dufrene’s observations; defendant’s admission to having consumed four or five beers and at least one glass of liqueur; defendant’s admission to having been awake for almost twenty-four hours prior to the accident; defendant’s poor performance in the field sobriety test; and the fact that the accident occurred in the westbound lane, requiring that defendant’s vehicle cross the center line to collide with the victim’s vehicle.

Although defendant attempted to show that his post accident dazed condition and reactions were caused by the collision and resulting injuries, he did not seek medical assistance. The jury chose to believe the evidence presented by the state.

There is no question that “a killing resulted from this conduct.” State v. Fontenot, supra at 921. The state presented sufficient evidence at trial to allow a rational trier of fact to find proof of guilt beyond a reasonable doubt. The motion for a new trial was properly denied.

Assignment of Error No. 2

Defendant contends that the trial court erred in admitting into evidence the defendant’s refusal to take the photoelectric intox-imeter test. Defendant claims that he did not understand the warnings concerning his rights because of his head injuries and could not intelligently waive his rights. We note that defendant exercised his right to refuse to take the intoximeter test and refused to sign any forms until he had a lawyer present.

No waiver of rights is involved. Defendant’s Fifth Amendment privilege cannot be used to bar the nontestimonial blood test. South Dakota v. Neville, - U.S. -, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). The Louisiana statute permits an accused to refuse the test and requires that the defendant be advised of the consequences of such refusal, but it is not necessary to give Miranda warnings before administering chemical testing. State v. Hargrave, supra; State v. Badon, 401 So.2d 1178 (La.1981). The officer correctly informed the defendant of his right to refuse, and of the consequences of his refusal. It is not error that the officer erroneously informed defendant that he could lose his vehicle registration for refusing to take the test. State v. Spence, 418 So.2d 583, 586 (La.1982).

Defendant claims that the officer failed to comply with the procedures of R.S. 32:667 in that he did not submit a sworn statement to the Department of Public Safety stating that he had reasonable grounds to believe the arrested person was under the influence of alcoholic beverages so that that department could suspend the defendant’s license. The suspension would allow defendant an administrative hearing and a pretrial opportunity to rebut testimony of intoxication. Defendant argues that he was denied due process.

The consequence of the officer’s failure to file the sworn statement is that the defendant’s license will not be revoked under that section of the law. No advantage was lost to the defendant by the absence of this administrative hearing. Defendant’s right to challenge the introduction of evidence of his refusal to take the test is not abridged. Any issues raised in this hearing could be raised at a criminal trial.

Defendant claims, lastly, that the forms used by police officers when requesting that a person take an intoxication test are “incomplete, vague, improper and written in a manner which induces coercion and duress.”

The form is not incomplete or vague because it lacks reference to appellate review, administrative hearings or limited driving privileges. The form is designed to relate only to the taking or refusal to take the intoxication test. In conformance with R.S. 32:661 C, the form advises of the constitutional rights and of the consequences of refusal to submit to a chemical test. It is required to go no further.

The form is not improper because it “requires” a chemical test. By law, “any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test ...” R.S. 32:661 A. Defendant was required to take the test and realized the consequences of his refusal.

The form is not coercive or disparaging of constitutional rights. Defendant was well aware of and exercised his constitutional right to a lawyer, and was not coerced into consenting to the testing. He, in fact, did not consent to the testing. The Fifth Amendment protection against self-incrimination does not protect against chemical testing for intoxication. State v. Hargrave, supra.

Assignment of Error No. 8

Defendant contends that administration of the field sobriety test is an illegal search because the legislature has not validly delegated this responsibility to police officers. He argues that R.S. 32:661 et seq. authorizing chemical testing preempts the area of intoxication testing.

When enacting R.S. 32:661 et seq., the legislature did not intend that this procedure be the exclusive evidence of intoxication. R.S. 32:662 C states: “The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages.”

This court has indicated that “[intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify.” State v. Spence, supra at 589; State v. Badon, supra at 1179; State v. Neal, 321 So.2d 497, 500 (La.1975).

In conducting the field sobriety test, Officer Dufrene was gathering evidence as an observer of coordination. Gathering evidence is not an exclusive function of the legislature.

The ultimate decision of whether or not the defendant was intoxicated rests with the fact finder. The court did not err in admitting evidence of the field sobriety test.

Assignment of Error No. 4

The defendant contends that the trial court erred in denying the defendant the opportunity to fully cross-examine the victim’s mother, a witness for the prosecution. Defendant sought to elicit from the witness that the victim’s estranged wife filed a civil action for damages in the amount of $1,000,000 as a consequence of this accident.

The trial court has wides discretion in determining the relevancy of evidence and its determination will not be overturned absent a clear abuse of discretion. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. West, 419 So.2d 868, 876 (La.1982). Error, if made by the trial court, is not fatal unless the defendant demonstrates prejudice. State v. Humphrey, 412 So.2d 507, 516 (La.1981).

Defendant’s proffer does not convince us that the evidence he sought to elicit would tend to show or negate the commission of the offense. R.S. 15:441. The trial court did not err in refusing to allow the cross-examination. It is questionable whether the witness would be competent to testify as to the details of a lawsuit to which she is not a party. The defendant has not shown that he has been prejudiced by the trial court’s ruling.

Defendant’s assignments of error lack merit.

Accordingly, defendant’s conviction and sentence are affirmed.

LEMMON, J., concurs and will assign reasons.

LEMMON, Justice,

concurring.

Subscribing to the decision of the court, I add these concurring reasons in an attempt to clarify a very important, but very confused, aspect of Louisiana criminal procedure: the proper test to be applied by a trial judge in deciding whether to grant a new trial or a judgment of acquittal when confronted with a post-trial motion challenging the sufficiency of the evidence.

In 1975, the Legislature amended La.C. Cr.P. Art. 778 to delete the provision providing for a directed verdict of acquittal in jury trials, thereby eliminating the trial court’s authority to refuse to submit the case to the jury when the evidence was not legally sufficient to support a conviction. See Acts 1975, No. 527. This court subsequently permitted the issue of legal sufficiency of evidence to be presented to the trial court by a postverdict motion for new trial alleging the “total lack of evidence”. See State v. Winzer, 354 So.2d 533 (La.1978).

Even after the United States Supreme Court mandated the rational juror standard for determining sufficiency in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Louisiana courts continued to permit the use of the motion for new trial as a procedural device to question legal sufficiency of evidence. However, in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), the United States Supreme Court made it very clear that a finding of legal insufficiency precluded a new trial on double jeopardy grounds. See State v. Shapiro, 431 So.2d 372 (La.1982).

In 1982, on recommendation of the Louisiana State Law Institute, the Legislature added La.C.Cr.P. Art. 821, which provided for a postverdict judgment of acquittal to fill the procedural void created by the elimination of the directed verdict in jury cases. The article constitutes a legislative recognition that a motion for a new trial is not the appropriate procedural vehicle for questioning the sufficiency of the evidence, because the relief sought for the state’s failure to produce sufficient evidence is a judgment of acquittal, not a new trial. See La.C.Cr.P. Art. 821, Reporter’s Comments.

Adoption of Article 821 emphasizes the distinction between the trial court’s granting of a new trial based on the “weight” of the evidence and the trial court’s granting of a judgment of acquittal based on a finding that the evidence was legally insufficient.

The United States Supreme Court clearly recognized the same distinction for double jeopardy purposes in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), and Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The distinction, therefore, is not merely one of form, but is of critical legal significance. In the first instance, the trial judge is serving as a “thirteenth juror”, and the judge sets aside the verdict in the interest of justice, based solely on the “weight” of the evidence. La.C.Cr.P. Art. 851. Such ruling does not bar a retrial. Tibbs v. Florida, above. Compare Hudson v. Louisiana, above, note 5 at p. 44, note 5 at p. 973 of 101 S.Ct. See also the concurring opinion of Justice Tate in State v. Hudson, 373 So.2d 1294 (La.1979). By contrast, a trial judge’s ruling that the evidence failed to meet the Jackson standard of legal sufficiency must result in a judgment of acquittal. Hudson v. Louisiana, above.

In State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983), the court of appeal rendered a scholarly opinion on the issue. The trial judge, in granting a new trial, had merely stated that the evidence was “insufficient”. The state appealed the granting of the new trial, and the court of appeal, unable to discern the basis for the trial court’s order, remanded with explicit directions to clarify the basis for the ruling. The court of appeal stated:

“It is our view, and we so hold, that only the weight of the evidence can be reviewed by the trial judge in a motion for new trial under C.Cr.P. Art. 851. The trial judge can grant a new trial only if dissatisfied with the weight of the evidence, and in so determining the trial judge makes a factual review as a thirteenth juror rather than under the Jackson standard. If he grants a new trial because of the weight of the evidence, that new trial can proceed without being barred by double jeopardy. Tibbs v. Florida, supra. Such a determination by the trial judge is not subject to review by the appellate courts because of Louisiana Constitution Article 10, Sec. 10(B) and C.Cr.P. Art. 858.
“On the other hand, if the trial judge finds the evidence legally insufficient, he must do so under C.Cr.P. Art. 821 which decision is subject to appellate review on application of the state. The trial judge cannot act as a thirteenth juror in reviewing a jury verdict under C.Cr.P. Art. 821, but must review under the much more restrictive Jackson standard.”

For a similar scholarly analysis and result, see State v. Chapman, 438 So.2d 1319 (La.App. 3rd Cir.1983).

In summary, I emphasize that the purpose of these concurring thoughts is not to quibble over the “title” of the motion by which the issue of legal insufficiency under Jackson is raised. Certainly, the trial court (or the appellate court) may treat the issue as properly presented despite the failure of counsel to denominate the motion properly as one for judgment of acquittal.

      . “Negligent homicide is the killing of a human being by criminal negligence.
      The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
      Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.” R.S. 14:32.
      “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” R.S. 14:12.

      .For an understanding of the jurisprudential developments which preceded the 1975 amendment, see State v. Hudson, 253 La. 992, 221 So.2d 484 (1969); State v. Douglas, 278 So.2d 485 (La.1973); State v. Baskin, 301 So.2d 313 (La.1974).

      . For a discussion of Louisiana law in this respect predating the present Code of Criminal Procedure, see State v. LaBorde, 234 La. 28, 99 So.2d 11 (1958); State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961).

      . This distinction was earlier recognized by this court in State v. Jones, 288 So.2d 48 (La.1973).

      . In State v. Peoples, 383 So.2d 1006 (La.1980), this court recognized its authority to review the legal sufficiency of evidence based on an assignment of error filed with this court, even though the defendant failed to raise the issue in the trial court. Later, in State v. Raymo, 419 So.2d 858 (La.1982), we recognized our authority to review sufficiency, even though defendant did not raise this issue in this court by assignment of error.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana, ex rel., Douglas JOHNSON v. Ross MAGGIO, Warden.
    No. 83-KH-1494.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   PER CURIAM.

Writ granted. The Court of Appeal’s ruling of May 17, 1983 does not comply with the March 25, 1983 order of this Court. Petitioner is not to be denied access to the courts for review of his case on the merits by the overzealous application of form and pleading requirements or hyper-technical interpretations of court rules.

Among other matters presented in petitioner’s writ application to the Court of Appeal, petitioner is seeking appellate review of a ruling by the trial court in which he was denied a copy of the record of his criminal mischief trial. In response to this, the Court of Appeal invoked Rule 4 of the Uniform Rules of the Courts of Appeal relative to writs of review and denied petitioner’s writ application on the grounds that he failed to attach the pertinent parts of the record of the case, the same record which petitioner is complaining he cannot get. Similarly, in response to petitioner’s contention that the attorney appointed to represent him at the concluding part of his trial, one Ernest Smitherling, refuses to answer his correspondence or to take any action in perfecting or applying for writs of review from petitioner’s conviction for criminal mischief, the Court of Appeal informed petitioner that his arguments would not be entertained until they were presented by his attorney, Ernest Smitherling. Finally, the Court of Appeal in its most recent ruling holds that no relief can be afforded petitioner under Rule 5 of the Uniform Rules of Courts of Appeal (for post-conviction relief) because, according to its interpretation of the Rule and application of C.Cr.P. art. 924, petitioner is not “in custody.” And they have so ruled notwithstanding that petitioner has been convicted, sentenced and is presently imprisoned, at least in part, because of that conviction. This erroneous interpretation by the Court of Appeal ignores this Court’s ruling in State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1981).

The sum effect of these lower court rulings has been to deny petitioner access to the courts for review, on the merits, of his criminal mischief conviction. Such action constitutes an improper deprivation of rights and, as pointed out in our earlier ruling, is at odds with the very policy underlying the reasons for the Rules, to provide a means of “safeguarding individual liberty against unlawful state action.”

Nonetheless, in order to expedite disposition of the case, this Court ordered up the record of petitioner’s misdemeanor conviction and reviewed it. Had we found that petitioner’s contentions were clearly without merit, this Court would simply have denied the application at this juncture. However, it appears that petitioner may have one or more meritorious arguments. At the least they warrant serious consideration.

Accordingly, petitioner’s writ is granted and the ease is again remanded to the Court of Appeal, for expedited review of petitioner’s criminal mischief conviction after lodging of the record, appointment of counsel by the Court of Appeal, briefing and argument, and full opinion.

WATSON, J., concurs in the Order.

LEMMON, J., concurs.

      . Relator’s probation has no doubt been revoked because of that conviction, rather than certain independent arrests.

      . In State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1981) this Court gave post-conviction relief to a petitioner who, although not “in custody” in the sense that he was serving time for the sentence on the conviction in question, was nonetheless “in custody” as a result of that conviction inasmuch as it was used to support his fourth offender adjudication and the enhancement of his sentence. Likewise, petitioner herein is “in custody” insofar as his probation was revoked because of his criminal mischief conviction.


author: BOWES, Judge.

text:
    KUSWA & ASSOCIATES, INC. v. THIBAUT CONSTRUCTION CO., INC.
    No. 82-CA-48.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 28, 1983.

      T.J. Lestelle, New Orleans, for plaintiff-appellant/appellee.
    Barbara Treuting Casteix, New Orleans, for defendant-appellee/appellant.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.

       GAUDIN, J., was of the opinion to grant a rehearing.

   BOWES, Judge.

This case comes to us on cross-appeals filed by plaintiff and defendant, after a judgment by the trial court awarding plaintiff the sum of $2,921.50, and dismissing defendant’s reconventional demand. We reverse in part, affirm in part and amend.

Kuswa filed suit originally against Thi-baut Construction Company for alleged damages in the form of lost profits, resulting from Thibaut’s termination of various construction contracts with Kuswa. Thi-baut reconvened to recover costs it claimed it incurred in repairing work purportedly done improperly by Kuswa. Additionally, Thibaut asserted a claim for damages in an amount equal to the “unnecessary” interest expenses which it supposedly incurred on its interim construction loans “as a result of Kuswa’s unreasonable delay in performance of the contracts.” The district court’s dismissal of the reconventional demand was made without comment. However, the trial judge did state in his reasons for judgment that he found the contracts in question to have been made on a building-by-building basis, rather than “contingent” on plaintiffs performing the entire job. It is with this finding that we disagree.

On February 9, 1979, pursuant to a discussion with one Bill Christy (then supervisor of Thibaut Construction Company), Kuswa submitted a three-page “Proposal”, describing in detail the proposed work and the price — $2,850.00 per four-plex for painting and 14½ cents per square foot of sheet-rock.

At the top of the page in this particular document is this vital language on which this controversy hinges: “This bid is contingent on Kuswa & Associates, Inc., doing the same work on all four-plexes which are sixty-two (62) in number.”

This proposal, which states in the first sentence that it is a bid, was accepted by Thibaut, who, on March 28, 1979, entered into a “Sub-Contractor Base Agreement” with Kuswa, which agreement identifies this contract as one for painting and sheet-rock: “1) The work to be performed hereunder is generally described as Bid from Kuswa & Associates, Inc.”

Other than the standard form provisions, the only additional language refers to Price Lists, which state:

“See attachment schedule A
See attachment schedule B”

And, at the very top of the contract, above all other writing: ,

“See attachment I for the above (16) points.”

Attachment I, according to the trial testimony, evolved when Kuswa, uncomfortable about “vagueness” in some of the provisions (the “16 points”), elaborated on certain of them. For example, provision No. 12, formerly, provided:

12) From time to time under this agreement THIBAUT Construction Co., Inc. shall pay to Contractor upon completion and presentation of applicable Work Orders to the Superintendent in charge for his approval, sums in accordance with this agreement. Contractor expressly agrees in this context that he waives all rights to statutory or Constitutional liens on any job not fully performed by Contractor under this agreement.

Kuswa, in its attachment, added:

“12. Yes — with payment agreements made before building starts.”

Attachments A and B are merely payment schedules for painting and sheetrock —$200.00 to prime the exterior, $1,500 to complete the interior, etc. That base agreement, along with attachments I, A and B, were contended by Thibaut to constitute the entire initial contract, without reference to the February 9th proposal. Such, too, was the opinion of the trial judge. This contention is one which we find untenable.

This so-called initial agreement (dated March 28th) does not, in and of itself and including the attachments, sufficiently identify the work to be done. This “contract” makes no mention of the address of the property, and does not specify the quality of materials, detail of workmanship, etc.

Broadly considered, specifications of a contract can be or may be included within the body of the contract or agreement, or it may form the contents of a separate document properly identified with the contract itself. Generally, specifications have to do with spelling out in detail the quality, quantity, character or conditions under which the subject matter of the contract may be or shall be performed. Specifically, the specifications should be definite, certain, explicit and express, [emphasis supplied] Toye Bros. Yellow Cab Co. v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir.1972).

This court finds that the word “bid” referred to in the March 28th contract itself concerns the February 9, 1979 document, and thereby incorporates this document into the initial contract itself.

Contracts need not be imposed in a single instrument but may include documents by reference thereto. Calcon, Inc. v. Young Companies, Inc., 822 So.2d 883 (La.App. 1st Cir.1975). We find the wording of the phrase “Bid from Kuswa & Associates, Inc.” sufficiently clear to describe the proposal of February 9th. We further find that incorporation of this bid (February 9th) is a necessary action in order to give sense to the contract as the February 9th instrument details the preparation, painting, staining, sheetrock size, quality of texture, etc.

The pay schedules and enlargement on the base provisions (the attachments) do not provide such specifications. We find therefore that the trial court was in error when it concluded that the word “bid” referred solely to the attachments “A” and “B”.

We are of the opinion that “bid” referred to the proposal of Kuswa dated February 9th as it delineated the specifications for the entire contract initially contemplated by the parties for painting and sheetrocking. Ergo, the Sub Contractor Base Agreement of March 28th, with attachments I, A, and B, and the February 9th proposal, comprise the entire original contract between Kuswa and Thibaut. The contract considered without the February proposal is not of itself meaningful within the contemplation of Civil Code articles 1951 and 1955.

But an agreement must be interpreted as a whole and, where possible, effect should be given to all clauses of an agreement; and a construction will be preferred which gives a reasonable meaning to each clause of an agreement, rather than one which leaves any clause useless or inexplicable. Articles 1951, 1955, LSA-Civil Code, and jurisprudence thereunder. [emphasis supplied]. Green v. Southern Furniture Co., 94 So.2d 508 (La.App. 1st Cir.1957)

It fellows, therefore, from the wording of the February 9th bid, that the contract was for 62 four-plexes, contemplated by Mr. Thibaut, as the number of buildings yet to be constructed at the time of the contract.

Defendant argues that had the proposal in question been intended to be part of the March 28th contract, it would have been so identified as another attachment. Considering the rather vague manner with which business dealings between the parties was handled, the court finds this argument somewhat specious.

Thibaut’s argument that it was not the owner of 62 lots in the subdivision, or did not have an agreement to purchase the lots, or that it did not have construction financing available, etc., and so could not have contemplated contracting for 62 buildings is equally unsound. The fact that Kuswa was given a list at the inception of the arrangement, of 62 addresses of the four-plexes, for billing purposes and, more importantly, the fact that as of the date of trial, almost all 62 buildings had been completed, defines with much certainty the intent of Thibaut to build 62 units.

Consequently, in accordance with Civil Code Article 1945(2)(3), we are bound to give legal effect to these contracts according to the true intent of the parties; and intent is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. We conclude that, as shown above, to give credence to defendant’s version of the contract would, indeed, lead to absurd consequences.

Such interpretations as we have placed on the documents of February 9th and March 28th we find relevant to the sheetrock and painting contracts only. Subsequent to the March 28 contract, another document, also titled “Sub-Contractor Base Agreement” and dated April 30, 1979, delineated an apparent change in the pay schedule to be paid to Kuswa for sheetrock-ing. From the testimony of Robert Kuswa, it is evident that a change had taken place within Kuswa’s business to this extent; previously, at the inception of the contract in question, Kuswa had actually “subbed” the sheetrock work to one Dave Brown. When the April 30 contract was signed, Kuswa had decided to have its own workmen perform the sheetrock work, and actually did complete one house. We find, therefore, that the April 30 document was an amendment to the March contract, and, therefore, relates back to that agreement.

We do not believe, however, that there is sufficient evidence before us to permit this court to conclude that the frame and trim contracts were also intended to encompass all 62 four-plexes. The major basis for this reasoning is that none of those agreements or revisions, dated August 7, August 8, October 8, November 29, and November 30, make reference to the original contract at any point. The type work to be done was separate and distinct from the type of work originally specified, (as opposed to Duffy v. Lagasse, 65 So.2d 337 (Ct.App. Orleans 1953), upon which plaintiff relies.) Different equipment and materials were needed to complete the trim and frame, than to complete the paint and sheetrock. While it may very well be that Kuswa and Thibaut both intended plaintiff to trim and frame all of the remaining buildings, both the differing nature of the work to be performed, and the failure of the subsequent contracts to refer back to the original, persuade us to determine otherwise.

The initial contract itself requires a written termination as provided for in each of the Sub-Contractor Base Agreements, which were drawn by Thibaut:

“14) This Contract shall remain in full force and effect until termination in writing with any and all notices to be sent to the Contractor at the address shown above.”

The absolutely uncontroverted evidence at the trial showed that no written, nor even oral, notice of termination has ever been sent; indeed, Kuswa was simply given no further work to do on the project. Jim Owens, the project supervisor at the time Kuswa was “eased” out, testified that he was instructed to “phase out” the plaintiff. There is no question but that defendant breached the contract by failure to give written notice of termination, as plainly required.

In addition, this court is unconvinced that Kuswa performed work in an unwork-manlike manner so as to be in breach of the contract. Owens testified that the work done by Kuswa was satisfactory for the most part, and any mistakes or problems (classified as “punch list” work by the testimony) could have easily been corrected by Kuswa, itself, had it been requested or given a chance to do so by defendant. The majority of defendant’s exhibits showing failed initial inspections also show final approval, and final inspections as complete, all during the time that Kuswa was on the job sites or available to be there. The record does not support a conclusion that Kuswa did not complete the “punch” lists necessary for the sites in question, or would not have done so had they been given the opportunity. We note here that we disagree with the contentions of counsel for defendant that Owens was a “hostile” witness and that his testimony was impeached.

Plaintiff testified he was not given any such “punch lists” or an enumeration of things to be corrected near the end of his time at the site; and Owens testified that he was instructed to hire someone else to finish the buildings, and that Kuswa was not given the chance to correct any faults. It is therefore inequitable to characterize plaintiff’s product as “unworkmanlike” and a breach of the contract.

Because we find that the defendant breached the contract, it cannot recover for off-sets or costs of completing the work which would reduce plaintiff’s profits. Leto v. Cypress Builders, Inc., et al., 428 So.2d 819 (La.App. 4th Cir.1982), in which we concur. See also Guidry & Swayne v. Miller, 47 So.2d 721 (La.1950).

We are of the opinion that plaintiff is entitled to recovery of loss of profits under the total contract for the balance of the 62 buildings that he was not allowed to complete, for painting and sheetrocking, on the formula utilized in Guidry & Swayne v. Miller, supra, for fixed amount contracts:

[3] The correct way to ascertain the profit, if any, which plaintiff would have made had it been permitted to complete the work as contemplated by the contract and according to the plans and specifications is to ascertain with reasonable certainty just what amount it would have been necessary for the plaintiff to expend for labor and materials to complete the construction of the dwelling as contemplated by the contract and pursuant to the plans and specifications. To this amount, whatever it might be, should be added the total of the amount expended by plaintiff up to the time of the breach of the contract and the amount for which it is liable from the contract price of [sic] $9,497.00. The total of these two amounts, if less, should be deducted. By this method the plaintiff will be placed in as good a position as it would have been if it had been permitted to complete the contract.

More succintly, in White v. Rimmer and Garrett, Inc., 340 So.2d 283 (La.1976), the Supreme Court stated: “Lost profit is determined by deducting the cost of labor and materials from the total contract price.” (p. 286).

In the present case, we find that plaintiff Robert Kuswa’s testimony at the trial, based on his company’s records, was sufficiently reliable to meet the standards of “reasonable certainty” enunciated in Gui-dry. We base this finding on the trial transcript, itself, to wit:

At p. 14:
THE COURT:
YOU’RE OFFERING THE CHART ITSELF?
MR. LESTELLE:
YES SIR.
THE COURT:
IT’S NOT ADMISSIBLE, THE BEST EVIDENCE IS MR. KUSWA’S TESTIMONY WHICH IS IN THE RECORD.

(The chart referred to was a summary of buildings completed, computation of price, and number of buildings left to go).

At p. 15:
MS. CASTEIX:
BUT I THINK IT’S JUST A SUMMARY OF THE BUILDINGS COMPLETED, BUILDINGS LEFT TO GO, AND COMPUTATION OF PRICE, SO THAT FOR THE SAME REASONS I THINK THAT IT’S A SUMMARY OF TESTIMONY, AND FOR THAT REASON, NOT EVIDENCE.
THE COURT:
THE BEST EVIDENCE, ONCE AGAIN, IS MR. KUSWA’S TESTIMONY.
MR. LESTELLE:
WELL, AS LONG AS YOU’VE WRITTEN IT — WRITTEN DOWN THE FIGURES, YOUR HONOR, THAT’S FINE.
At cross-examination, on page 53:
Q. NOW, DO ANY PORTIONS OF THOSE — WELL HOW — HOW EXACTLY DO YOU DERIVE AT THOSE FIGURES? NOW, I KNOW YOU TOLD US ABOUT HOW MUCH IT COST YOU PER MAN AND HOW MANY HOURS, HOW MANY MEN, HOURLY RATE: IN REACHING THOSE, DID YOU GO BACK AND LOOK AT ANY CHECK STUBS OR ANYTHING THAT YOU ACTUALLY PAID?
A. I KNOW EXACTLY WHAT I PAY MY MEN EVERY WEEK. THE MEN GET PAID FOR WORK PRODUCED, NOT JUST BECAUSE IT’S FRIDAY, PAYDAY.
Q. SO YOU — THESE ESTIMATIONS OR THESE AVERAGES OF WORK, THAT’S BASED UPON YOUR REVIEWING YOUR RECORDS AND ACCURATELY DETERMINING THAT THAT WAS THE CASE AT TRIANON SQUARE?
A. ABSOLUTELY.

Mr. Kuswa reviewed his records, and, as defense counsel elicited, accurately determined the figures. Although admission of the chart in question was objected to, Kus-wa’s testimony was not — defense counsel herself cross-examined Mr. Kuswa in detail as to how his figures were computed and then, as particularized above, apparently came to the conclusion herself that Kuswa’s figures for lost profits were accurately based on previous records for the same or similar type construction.

While we feel that the records themselves may have been ultimately the best basis for an award of damages, and although we feel the profit figures as testified to by Mr. Kuswa are quite high, there is no showing in the record that the figures quoted by him were inaccurate, over-inflated, or otherwise incorrect. There was no contravening evidence or expert testimony presented by defendant. Kuswa’s figures stand unopposed and uncontradicted. We feel that the failure to object to Kuswa’s testimony supports the finding of the trial court that such was the best evidence available at trial.

Finally, defendant argues that since plaintiff was not a licensed contractor in the state of Louisiana at the time of the original contract, he is not entitled to damages, quoting United Stage Equipment v. Charles Carter & Co., 342 So.2d 1153 (La.App. 1st Cir.1977) and Louisiana Revised Statute 37:2151, United Stage and the cases under that statute.

The statute itself would seem to require Kuswa to obtain or hold a license, which it subsequently did (during the time Kuswa was still working at the Thibaut jobsite). R.S. 37:2160 makes it unlawful to engage in the business of contracting without a license. However, United Stage Equipment and the cases cited therein for support, evidently deal with out-of-state contractors who are unlicensed in Louisiana, yet are seeking recovery in Louisiana. For this reason alone, the cases are not persuasive. Further, plaintiff did have an occupational license with the Parish, which fact is conspicuously absent in United.

Finally, we find that defendant’s position in this regard would contravene public policy. To give effect to such interpretation would put many builders or owners in a position which would allow them to take undue advantage of unlicensed, yet capable, subcontractors, ignorant of the requirement, and could lead to a species of unjust enrichment. It is unknown and unascer-tainable from the record whether or not Thibaut knew about Kuswa’s licensing situation. Under the circumstances of this case, we believe it would be unjust, unfair and inequitable to adhere to such a stricture as defendant proposes and, therefore, reject that argument as inapplicable to the case at bar.

In taking this position, we do not mean to imply that we approve of contractors operating without a license or violating the law in any way. Indeed, quite the contrary is true. It is our opinion, however, that such violations should, instead, be punished by the criminal laws and such other sanctions as the legislature may specifically prescribe.

In accordance with Kuswa’s testimony at the trial, we find Kuswa and Associates, Inc., is entitled to recover for loss of profit as follows:

LOSS OF PROFITS OF PLAINTIFF FOR PAINTING & SHEETROCKING

1. Exterior Painting

Contract Price $ 1,136.25

Labor 120.00

Materials 160.00

Profit $ 856.25 per building

x 35 buildings remaining=

$29,968.75

2. Interior Painting

Contract Price $ 1,713.75

Labor 360.00

Materials 245.00

$ 1,108.75 per building

x 40 buildings =

$44,350.00

3. Sheetrock

Contract Price $ 3,340.00

Labor 1,200.00

Materials 800.00

$ 1,340.00 per building

x 40 buildings =

$53,600.00

TOTAL PROFIT LOSS - $127,918.75

We affirm that portion of the trial court’s judgment awarding plaintiff the sum of $2,921.50 on the unpaid invoice due and rejecting the reconventional demand of defendant. We reverse that portion of the judgment which rejected the other claims of plaintiff and accordingly, we amend the judgment of the trial court so as to grant judgment in favor of Kuswa and Associates, Inc. and against Thibaut Construction Company, Inc., in the sum of $130,840.25, with legal interest thereon from date of judicial demand until paid, each party to bear his own costs.

For the foregoing reasons, the judgment of the trial court is reversed in part, affirmed in part and amended.

REVERSED IN PART, AFFIRMED IN PART AND AMENDED.

      . Art. 1951. When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.
      Art. 1955. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.


author: NORRIS, Judge.

text:
    The COWLEY CORPORATION, Plaintiff-Appellee, v. SHREVEPORT PACKING COMPANY, INC. OF KANSAS, Defendant-Appellant.
    No. 15598-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    Writ Denied Jan. 16, 1984.

      William M. Comegys, III, Shreveport, for plaintiff-appellee.
    Nelson & Achee by James S. Denhollem and Harry R. Nelson, Shreveport, for defendant-appellant.
    Before HALL, FRED W. JONES, Jr., and NORRIS, JJ.
   NORRIS, Judge.

In this suit on a promissory note, Shreveport Packing Company, Inc., of Kansas (“Shreveport Packing”) suspensively appeals a judgment awarding the Cowley Corporation (“Cowley”) $42,487.49 as the principal balance due, with interest, attorneys’ fees and costs. Cowley has answered the appeal requesting that the amount of the judgment be increased to the original amount sued for. We affirm.

By authentic act dated May 31, 1971, Shreveport Packing Corporation conveyed to Shreveport Packing Company, Inc. of Kansas, certain property which it had previously operated as a “packing house”. The sale was for $650,000 represented by one promissory note of even date with the Act of Sale made payable to “BEARER” at the principal banking house of the First National Bank of Shreveport, bearing interest at 8% per annum upon unpaid principal and payable in 120 successive monthly installments of $7,886.45 with each payment to be applied first to interest and then to principal with the payments commencing July 15, 1971 and being due on the same calendar day of each successive month thereafter until fully paid. This note was secured by a vendor’s lien and mortgage on the conveyed property.

Cowley Corporation became the holder and owner of this note. Immediately after the execution of the documents pertaining to the sale, the note was placed with First National Bank of Shreveport for collection. Relying solely on the provisions of the “date note”, the bank applied the initial ten payments by computing interest on the amount due on the principal balance of the note according to the number of days that had elapsed from the date of the previous payment. The figure which resulted was paid as interest then the remaining portion of the payment was applied to principal.

In May, 1972, either Richard Rock, president of Shreveport Packing or Gilbert Shanley, a partner in the accounting firm of Heard, McElroy and Vestal, accountants for all parties at the time, furnished an amortization schedule to the bank. The bank then contacted Les Cowley, who was president of Cowley at the time about utilizing the amortization schedule to allocate payments to interest and principal. Upon being informed that the terms of the schedule (the number of payments, the rate of interest, the amount of the payments, and the initial principal amount due) were identical to the terms of the note, Mr. Cowley informed the bank that he would agree to the bank’s using the amortization schedule as a convenient guide for allocating interest and principal, thereby dispensing with the monthly necessity of computing interest due and principal. It is noteworthy that at this point no payments had been missed with the exception of the first payment which by agreement had been delayed 14 days. All other payments had been made within a few days of the due date. In confirmation of these instructions, J. Hugh Watson, the president of First National Bank, wrote a letter to Mr. Cowley which stated in part:

As you know, when we received the first ten payments of $7,886.45 each from Shreveport Packing Company, Inc., we deducted interest first and applied the balance to principal. Now that we have an amortization schedule, which you have approved, we have reallocated the application of the payments.
We had credited the first ten payments as follows:
Interest $ 45,155.83
Principal 33,708.67
Unpaid principal balance after April, 1972 payment 616,291.33
The amortization schedule reflects that the allocation of these ten payments should have been:
Interest $ 42,248.23
Principal 36,616.27
Principal balance 613,383.73
The May payment has been applied in accordance with the amortization schedule, leaving unpaid principal of $609,-586.50 which is the amount reflected by the enclosed copy of our credit to your account.

The basic difference in the bank’s computation and the computation per the amortization schedule at this point resulted from the first payment reflected on the note being due 45 days rather than 30 days from the date of the note and the fact that this payment was not actually made until July 29, 1971, some 14 days after it was actually due. Additionally, several of the first ten payments were either made or credited a day or two late. The bank’s date note method of computation had taken into account these late payments in computing interest due whereas the amortization schedule presumes that all payments are made timely.

Subsequent to this turn of events, Mr. Cowley consented to extensions of time for payment of the following installments: August 15, 1972; November 15, 1972; December 15, 1972; December 15, 1973; November 15, 1974; December 15, 1974 and June 15, 1974. Between the date on which the note was executed and the date of the final payment actually made by Shreveport Packing in June, 1981, the following payments were made to “catch up” the missed payments: September 12, 1977 (2 extra payments); November 15, 1979 (1 extra payment); January 8, 1980 (1 extra payment); March 12, 1980 (1 extra payment); July 11,1980 (1 extra payment); November 13, 1980 (1 extra payment).

From May, 1972 until December, 1979 the bank continued to allocate interest and principal as per the amortization schedule. Tax returns on behalf of both parties were filed based on allocations of interest furnished by the bank. In December, 1979, Cowley instructed the bank to correct its books to reflect balances derived from the allocation of interest and principal according to the strict terms of the note and to allocate any further payments in the same fashion. This resulted in a principal balance of $206,807.78 as of December 12,1979, which differed from the principal balance reflected by the bank in November, 1979 of $167,625.17 based on the amortization schedule. Cowley then reported the additional interest income on its May, 1980 tax return resulting in an increased tax of $12,-000.

By check dated June 8, 1981, Shreveport Packing forwarded $7,857.81 as the 120th installment. This was the amount provided for the 120th payment on the amortization schedule rather than the amount provided for in the note. On the check was the following notation: “Cowley payment # 120 — final payment on $650,000 loan according to amortization schedule.” The bank received and deposited this check to the Cowley account, apparently without informing Cowley of the notation on the check.

Shortly thereafter, Cowley again informed Shreveport Packing that a principal balance remained due on the note. Shreveport Packing disputed this, the parties attempted to negotiate their differences to no avail, and this suit was filed on August 21, 1981. At trial, Cowley contended that because the note was a “date note” and certain payments were not made timely, that there was an unpaid principal balance of $48,790.85 as of June 15, 1981. This sum was the figure which resulted when the payments of interest and principal on the note were computed utilizing the “date note method.” Conversely, Shreveport Packing contended at trial that Cowley granted “moratoriums” on the payment of certain monthly installments, which were to be without liability for additional interest attributable to the delayed payments. In reality, Shreveport Packing’s real contention was that from the outset the extent of its obligation under the note was to pay 120 installments in the amount called for, which regardless of when made, would be allocated to interest and principal pursuant and numerically corresponding to the amortization schedule in the possession of the bank. Additionally, it was contended that the debt had been extinguished by accord and satisfaction or by compromise.

In written reasons for judgment, the trial court found the note in question to be a “date note.” It further found that Cowley’s instruction to the bank in May, 1972, had the legal effect of authorizing the bank to receive payments from Shreveport Packing to be credited according to the amortization schedule provided the payment was received within a reasonable period of time following the due date and that by allowing the bank to alter the principal balance due Cowley agreed to “give” Shreveport Packing $2,907.60. The trial court heard the testimony of Mr. Cowley and Mr. Rock and rejected Rock’s contention that any extensions or “moratoriums” were to be without additional interest accruing because of the delays. It was the court’s finding that all Cowley agreed to do was to allow the missing of certain payments without foreclosure and to accept these payments at a later date. The court further found that Cowley never intended to forgive any interest accruing after May, 1972, but that the actions of Cowley at the time served to solve the problems of accrued interest because of the lateness of the first payment and three other payments prior to that time. The court rejected the contention that the 120th payment constituted an accord and satisfaction.

After arriving at the above findings, the court arrived at the balance due on the note according to the following method of calculation:

(1) After applying the May 1972 payment the principal balance due was $609,586.50.
(2) The dates of receipts of payments as shown by the bank records would be used to credit all payments on the note.
(3) If payment by defendant was made within five (5) days following the due date, it should be treated as if paid timely on the 15th day of the month; if not, interest runs per the strict terms of the note.
(4) A 360 day year should be used.

Based upon that method of calculation, a judgment was signed in favor of Cowley in the amount of $42,487.49, together with interest at the rate of eight (8%) per annum from June 15, 1981, plus attorney fees in the amount of five (5%) per cent on the principal and interest and costs. Additionally, the vendor’s lien and mortgage in favor of Cowley were recognized and maintained.

Shreveport Packing appeals contending that the trial court erred in finding:

(1) That the parties intended that the payments on the note were not to be allocated to principal and interest according to the amortization schedule;
(2) That the moratoriums granted by Cowley did not include interest as well as principal;
(3) That the acceptance of the June 8, 1981 payment was not an accord and satisfaction;
(4) That no consideration need be given to Section 3 of the stock purchase agreement entered into by Mrs. Cowley in October, 1978, showing there remained 37 payments of $7,886.45 on the purchase agreement with the last payment due November 15, 1981;
(5) The testimony of Mr. Cowley to be more credible than that of Mr. Rock;
(6) That the Cowley Corporation’s vendor’s lien and mortgage should be recognized; and
(7) That the note was not paid in full upon receipt of the June 8,1981 payment.

Cowley answered the appeal contending that the trial court erred in finding:

(1) That Cowley agreed that the Bank was to receive payments from Shreveport Packing and was to credit those payments per the Amortization Schedule provided that the payment was received within a reasonable period of time following the due date;
(2) The principal balance then due on the note to be $613,383.73 before the May, 1972 payment and $609,586.51, a difference of $2,907.61;
(3) That the balance due on the note should be calculated on a principal balance of $609,586.50 from May, 1972, and if payments were made within five days following the due date the payment should be treated as if paid timely on the 15th of the month; if not, it should run per the strict terms of the note.

Shreveport Packing contends that in spite of the specific terms of the note providing that payments were to be due on the 15th day of each month, that the parties agreed at the outset to abide by the amortization schedule thereby amortizing payments accordingly regardless of when paid. It is further contended that the “moratoriums” or extensions subsequently granted by Cowley were without additional interest which would have become due as a result of the delayed payments. Viewing Shreveport Packing’s argument as a whole, it is obviously its position that since the amortization schedule provides for no specific date of payment that as long as 120 payments are made and accepted in the amount specified by the schedule, that the debt would be retired regardless of whether or not the installments were paid timely.

Parol or extrinsic evidence is inadmissible to show a prior or contemporaneous agreement that a note in the ordinary form providing for the payment of a certain sum of money, may, or should be, paid or discharged in some other mode or manner, or in some other medium, than that specified on the face of the instrument. Clasen v. Excel Finance Causeway, Inc., 170 So.2d 924 (La.App. 4th Cir.1965). Therefore, Shreveport Packing is precluded from claiming by way of parol or extrinsic evidence that the parties intended from the outset that untimely or missed payments would be allocated strictly in accordance with the amortization schedule without incurring additional interest.

Our review of the record compels us to conclude that the trial court was correct in its finding that Cowley simply agreed to allow the bank to allocate interest and principal on timely payments on the basis of the amortization schedule for the sake of convenience. Had the payments been made timely, then [with the exception of the first payment which was due 45 days after the date of the note] the allocations to interest and principal would have been the same whether based on the terms of the note or the amortization schedule. However, when payments were untimely or missed, then the utility and convenience of the amortization schedule ceased to be applicable and the bank should have ignored the schedule and reverted to its prior method of computation in accordance with the date note method.

Shreveport Packing next argues that the trial court erred in concluding that the “moratoriums” and/or extensions granted by Cowley did not include a forgiveness or remission of additional interest. After assessing the credibility of Mr. Rock and Mr. Cowley, the trial court specifically rejected the contention that Mr. Cowley agreed to allow any missed payments to be “made up” without additional interest accruing as a result of the delayed payments. Voluntary remission is a method by which obligations are extinguished. La.C.C. Art. 2130. An undisputed claim may be discharged in whole or in part by voluntary remission. No consideration is required and the absence of a dispute is wholly unimportant. All that is required under the remission articles [La.C.C. Arts. 2199, et seq.] is a finding that the creditor intended to remit his claim or that he estopped himself to claim the contrary. Arender v. Gilbert, 343 So.2d 1146 (La.App.3d Cir.1977). While the remission of a debt cannot be revoked by a creditor, remission is never presumed unless it clearly appears that the creditor intended it. The burden of proving remission, express or tacit, rests with those claiming its benefit. Succession of Martin, 335 So.2d 494 (La.App.2d Cir.1976). Our review of the record convinces us that the trial court was not clearly wrong in finding that Shreveport Packing failed to prove a remission or forgiveness of additional interest on the extended payments.

It is next contended that any dispute regarding the amount due on the note was compromised when Shreveport Packing entered into an agreement with Mrs. Katherine Cowley, the wife of Les Cowley, to purchase her stock interest in Shreveport Packing Company of Kansas, Inc. While Mr. Cowley did discuss settlement of the disputed principal balance on the note in connection with the purchase of Mrs. Cowley’s stock, Mr. Cowley testified that the terms he discussed with Rock were $100,000 in cash. Admittedly, Mrs. Cowley subsequently agreed to and did accept a note for $120,000. Although the agreement between Shreveport Packing and Mrs. Cowley does refer to the remaining balance on the $650,000 debt as being 37 payments in the amount of $7,886.45 each with the last payment being due November 15, 1981, the Cowley Corporation was not a party to the agreement. Mrs. Cowley only signed it in her individual capacity. Therefore, the agreement relied upon could not bind Cowley nor could it result in a compromise of this dispute. In Salling Wiping Cloth Co. v. Sewell, Inc., 419 So.2d 112 (La.App. 2d Cir.1982) we stated:

LSA-C.C. Art. 3071 provides the definition of “compromise” in Louisiana. A compromise is an agreement made for the purpose of preventing or ending a lawsuit in which two or more persons “adjust their differences by mutual consent”. As LSA-C.C. Art. 3071 further provides, the contract of compromise is preferred by the parties to the hope of gaining, balanced by the danger of losing. The contract of compromise must be reduced to writing or recited in open court, and of course the contract of compromise, like any other conventional obligation under the Civil Code, requires consent and capacity. Other crucial codal provisions stipulate that compromises “regulate only the differences which appear clearly to be comprehended in them,” and that compromises have the legal efficacy of judgments, possessing as they do “a force equal to the authority of thing adjudged”. [Footnotes omitted.]

Because Mrs. Cowley did not sign the agreement in her capacity as an officer of Cowley, there was no capacity or consent by Cowley to a compromise. Furthermore, there was no written agreement which clearly comprehended that the difference of the disputed balance of the $650,000 note would be regulated. Additionally, the agreement relied on by Shreveport Packing has not even been honored, and any alleged compromise contained therein would fail for lack of consideration.

Shreveport Packing finally contends that the trial court erred in finding that the acceptance of the June 8, 1981 check by the bank did not result in an accord and satisfaction. Although accord and satisfaction is not founded in statutory law in Louisiana, it has been adopted by our courts. In order for the doctrine to apply a debtor must tender payment to the creditor in full satisfaction of a disputed claim, and the creditor must in turn accept the tender. As in any other contract, acceptance of the offer must be by informed consent. Whether the creditor was fully informed of the nature of the compromise offered by the tender must be determined by the circumstances. Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d 37 (La.App. 4th Cir.1978). The creditor must fully understand and be aware that if payment is accepted, the claim will be deemed to have been paid in full. Pieri v. Dimaggio, 331 So.2d 59 (La.App. 4th Cir.1976). While the acceptance and cashing of a check for an amount less than that claimed when tendered as full payment constitutes accord and satisfaction and extinguishes the entire debt, the question of whether the check had been tendered and accepted as full payment is a matter of fact. Terra Trucks, Inc. v. Weber, 346 So.2d 275 (La.App. 4th Cir.1977). However, if the tender itself clearly sets forth that the lesser sum is offered in full payment of the disputed or unliquidat-ed debt, acceptance of the tender constitutes acceptance of the debtor’s offer. Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir.1975).

In the instant case, the check in question was accepted by the bank for collection and deposited to the account of Cowley without Cowley’s having seen the check. There is no evidence that Cowley had any advance knowledge of the notation on the check or its amount. In rejecting this defense, the trial court concluded that the wording on the check was insufficient to put Cowley on notice that it was even being offered in settlement of the real dispute between the parties and that at best the acceptance of this check would only have been an accord and satisfaction of the amount of the 120th payment. The trial court did not err in concluding that an accord and satisfaction did not result from this payment.

The Civil Code has provisions which might better dispose of the issue presented here. [See concurring opinions by Judge, now Justice Lemmon in Terra Tracks, Inc. v. Weber, supra; Louisiana National Bank of Baton Rouge v. Heindel, supra.] and compel the same result since the code contemplates an agreement of compromise reduced to writing. There is no written agreement present which regulates a difference clearly comprehended therein. See Salling Wiping Cloth Co. v. Sewell, supra.

Furthermore, the bank received the payment on behalf of Cowley for purposes of collection. Thus, the relationship between Cowley and the bank was that of principal and agent. Wessell Plumbing Company v. Scriber & Curtis, 16 La.App. 505, 134 So. 336 (1931); Davis v. Miller Builders & Developers, Inc., 340 So.2d 409 (La.App.2d Cir.1976). The bank was only the agent for the purpose of collecting the installments. La.C.C. Art. 2997 provides that an agent’s power must be express and special for a number of purposes including the power to compromise. Accord and satisfaction is closely akin to the civil concept of compromise. The evidence is clear that the bank had no express or special authority to effect an accord and satisfaction or compromise of the principal balance on behalf of Cowley. See H. O’Connor, Inc. v. J.R. Autenreith, Inc., 343 So.2d 1090 (La.App. 4th Cir.1977). There is no evidence that subsequent to the acceptance by the bank of the check, that action was ratified by Cowley; and in reality, the evidence is directly to the contrary.

Shreveport’s contention that the trial court erred in finding the testimony of Mr. Cowley to be more credible than that of Mr. Rock lacks merit. Issues of credibility are best left to the discretion of the trial court because of its better position to observe and evaluate live witnesses. Green v. Farmers Insurance Co., 412 So.2d 1136 (La.App. 2d Cir.1982). Our review of the record reveals no abuse of that discretion.

In its answer to this appeal, Cowley contends tht the trial court erred in concluding that Cowley agreed to forgive $2907.60 in interest which had accrued prior to May, 1972, under the terms of the note itself. While we might have arrived at a different conclusion, we cannot say that under the circumstances presented that the trial court was clearly wrong in concluding that Mr. Cowley’s actions and instructions to the bank had the effect of a voluntary remission of any interest differential resulting from the change in the principal balance to correspond at that point to the amortization schedule thus allowing it to be utilized as a convenient guide for allocating future payments provided they were timely made.

Likewise, we cannot say that under the total facts and circumstances presented by this case that the trial court was clearly wrong in holding that any payment credited within five days following the due date on the note should be treated as paid timely. The evidence is unclear as to when the bank actually credited payments all of which were received through the mail; thus, the trial court obviously made allowance for the receipt of mail on week-ends or holidays or payments which might have been received but not credited on the date of receipt. Under these circumstances, this five day “grace” period is not unreasonable.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

      . This conclusion is also supported by the court’s finding that Cowley agreed to accept several of the first ten payments as timely when made only several days late in order to facilitate the use of the amortization schedule as a guide for allocating payments in May of 1972.


author: GUIDRY, Judge.

text:
    Sion Smith TATUM and Helen Myers Tatum, Plaintiffs-Appellants, v. VILLAGE OF CONVERSE, Defendant-Appellee.
    No. 83-188.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Granted and Opinion Amended Jan. 12, 1984.
    Writ Denied Jan. 16, 1984.
    Lunn, Irion, Switzer & Salley, Michael S. Hubley, Shreveport, for plaintiffs-appellants.
    Don M. Burkett, Many, for defendant-ap-pellee.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This case arises out of action taken by the Town Council of the Village of Converse, condemning and ordering the demolition of a building owned by the plaintiffs, Sion Smith Tatum and Helen Myers Tatum, which building is located in the Village of Converse. Pursuant to LSA-R.S. 33:4764, the Tatums appealed the decision of the Town Council by filing suit against the municipality in the Eleventh Judicial District Court praying that the order of condemnation be vacated. Plaintiffs also prayed for damages and attorney’s fees. After trial de novo, the district court affirmed the order of the Town Council ordering demolition of plaintiffs’ building. From the judgment of the district court, the Ta-tums were granted a suspensive appeal but failed to post bond. The appeal is therefore devolutive.

Appellants’ specifications of error present three issues which may be summarized as follows:

(1) The trial court erred in finding that there was sufficient evidence establishing that the building was in a dilapidated and dangerous condition which endangered the public welfare such as to justify demolition;
(2) The trial judge erred in finding that appellants were afforded due process of law by the Town Council of the Village of Converse; and,
(3) The trial judge erred in failing to award damages and attorney’s fees.

FACTS

Some time prior to May, 1982, the Town Council devised a plan to clean up and beautify the Village of Converse, which plan included the demolition of dilapidated buildings. On or about May 1, 1982, a report was submitted to the Town Council by Alderman Troy Terrell recommending that plaintiffs’ building, situated on Lot 8 of Block 27 of the Village of Converse, be demolished.

Presumably, one William Dyess, an attorney of Many, Louisiana, was appointed to represent the non-resident owner of the property. Pursuant to his appointment, Mr. Dyess, on May 17, 1982, notified by certified mail with return receipt, one Ms. Emma Mae Tatum, who Dyess thought to be the owner, that the subject property would be discussed at a town council meeting at 6:00 p.m. on May 31, 1982. Dyess further advised Ms. Tatum that she would be required to show cause at that meeting why the building should not be condemned for the reason that it was in a dilapidated and dangerous condition which endangered the public welfare. The aforesaid notice was received by Ms. Emma Mae Tatum on May 20, 1982. The record reflects that on the aforesaid dates the property in question was owned by plaintiffs and not by Ms. Emma Mae Tatum, the latter having conveyed the subject property to plaintiffs pri- or to the submission of the May 1, 1982 report by Alderman Terrell to the Town Council. After receipt of the aforementioned notice, Emma Mae relayed same to plaintiffs, her son and daughter-in-law.

Mrs. Helen Myers Tatum traveled from Odessa, Texas to Converse for the May 31, 1982 meeting and made an appearance contesting the demolition of the property. The minutes of the May 31st meeting reflect that the council agreed that the Mayor and two construction experts would meet with Mrs. Tatum at the building site following the meeting to determine the feasibility of repairing the building. The Mayor and the two experts were to make a list of the required repairs and report back to the council. Although the minutes of this meeting reflect that Mrs. Tatum was given 30 days in which to show some sign of improvement or in which to demolish the building, there was no motion or vote at that time which would constitute an official action by the town council.

On June 4, 1982, Mrs. Helen Tatum met with the mayor and a construction expert, Mr. Sistrunk, at the building for approximately 15 minutes for inspection. Later that same morning, the building was also inspected by Mr. Rivers, also a construction expert. The inspections resulted in an apparent concensus that unspecified repairs were necessary.

The plaintiffs thereafter contacted several contractors but were unable to get a bid on the required repairs. In July, the plaintiffs returned to the Village of Converse to work on the building themselves. The work was interrupted when a representative of the State Fire Marshall’s Office informed the Tatums that they needed a permit in order to continue the repairs. During their stay, Mrs. Helen Tatum read in the local newspaper that a Town Council meeting was scheduled for the 12th day of July and decided to attend the meeting. The Council took advantage of her appearance at this meeting to again discuss the building. The ' minutes of the July meeting reflect that Mrs. Tatum informed the Council that she and her husband had commenced repairs but they were unable to give the Council a completion date. The Council decided that a firm decision on whether to order demolition or whether to allow additional time for repair of the building would be made at its ■ next meeting scheduled for August 2, 1982.

On July 15, 1982, the Tatums obtained a plan approval from the State Fire Marshall’s Office and continued to work on the building.

On August 2, 1982, the Town Council again met and discussed the demolition of the building. Mrs. Helen Tatum was present at this meeting although she was not formally notified of this hearing and its purpose as required by LSA-R.S. 38:4762. Mrs. Tatum informed the Council that she had spent approximately $2,000.00 in material alone on repairs and that she intended to spend up to $30,000.00 in future repairs. The Council, nevertheless, voted unanimously at this meeting to condemn the building.

After trial de novo, the district court affirmed the order of the Town Council finding that the building was in a dilapidated and dangerous condition which endangered the public welfare at the time the Council acted on August 2,1982. Plaintiffs appeal from that decision.

LSA-R.S. 33:4761 et seq. provide various procedural protections and substantive restraints before a municipality can condemn a building without compensation. It is axiomatic that statutes providing for these procedural protections and substantive restraints must be strictly construed. Housemaster Corp. v. City of Kenner, 374 So.2d 1240 (La.1979). The power of the municipality, under this statutory scheme, is limited to the condemnation of buildings which are in a dilapidated and dangerous condition which endangers the public welfare. LSA-R.S. 33:4761.

Before condemning a building, the municipality must give the owner sufficient notice and a hearing to satisfy governmental responsibility to accord due process of law. Housemaster Corp. v. City of Kenner, supra; LSA-R.S. 33:4762.

After proper notice and hearing, if the facts justify it, the governing authority shall order condemnation or may in its discretion grant the owner the option of making repairs to correct the dangerous condition, specifying the defects to be corrected, the allowable delay, and the general nature and extent of the repairs to be made. LSA-R.S. 33:4763.

The decision of the governing authority is not final if appealed from within five days and the owner may contest the legality or propriety of the decision or order of the governing body by trial de novo in the district court. LSA-R.S. 33:4763 and 33:4764. When the legality or propriety of the decision or order of the governing body is contested by the owner as provided by statute, the burden is on that body to sustain its action with sufficient evidence. O’Rourke v. City of New Orleans, 106 La. 313, 30 So. 837 (1901), and Miles v. District of Columbia, 166 U.S.App.D.C. 235, 510 F.2d 188 (D.C.Cir.1975).

We entertain serious doubt as to the validity of the condemnation resolution because of the Village’s failure to strictly comply with the notice requirements of LSA-R.S. 33:4762. However, we need not further consider this issue as our careful review of the record, in light of the legal principles above set forth, prompts the conclusion that the trial court manifestly erred in its conclusion that the Tatum building, on August 2,1982, was in a dilapidated and dangerous condition which endangered the public welfare.

The trial court held, and we agree, that the proper inquiry is the condition of the Tatum building at the time the Council acted, i.e., August 2, 1982.

Alderman Troy Terrell, the member of the Town Council in charge of building inspection who recommended demolition in his written report to the Council, was admittedly not an expert. His only inspection was on May 4, 1982 and was limited to the exterior of the building.

James Sistrunk and Sammy Rivers testified as building and construction experts for the Town. They were both of the firm opinion that on June 4th, their inspection of the building revealed that the south wall was in a dilapidated and dangerous condition which endangered the public welfare. This was Mr. Sistrunk’s only inspection. Mr. Rivers testified that he inspected the building again a few days before trial, which we will discuss later.

Edward F. Darnell, inspector of new construction with the Department of the State Fire Marshall who ordered the Tatums to cease construction until they obtained a plan approval from the State Fire Marshall, also testified on behalf of the Town. His only inspection was on July 6, 1982, at which time the Tatums had torn out part of the south wall to make the required repairs. He testified that the building was in a very poor dilapidated condition at that stage and that he therefore granted temporary authority to continue work to secure the south side of the building. He further testified that he did not know the present condition of the building because he had not been back to the building. Although all of the above testimony supports the conclusion that the building, specifically the south wall of the building, presented a menace to the public safety and welfare, as of July 6, 1982, the Council took no action on this building until August 2, 1982. The record reflects that at the August 2nd hearing, the Council was advised that the Tatums had made substantial repairs to the building.

At the trial de novo, evidence was introduced as to the extent of these repairs. The Tatums introduced photographs of the repairs made and testified that the repair work done on the south wall had been completed by August 2, 1982. The repairs consisted of replacing the rotted studs and sills, repairing floor joists, and re-siding the outer wall. Mr. Rivers, reinspected the building a few days prior to trial, including the repairs made prior to the August 2, 1982 council meeting. He testified that the south wall looked presentable and that whoever had done the carpentry work did a pretty good job. Mr. Sistrunk, when shown a photograph of the repairs made to the south wall, commended that it looked good to him. Therefore, the only evidence in the record pertaining to the condition of the building at the time the Council acted supports the conclusion that the dilapidated condition which endangered the public welfare no longer existed. We therefore conclude that the Village of Converse failed to sustain its action with sufficient evidence and the trial court manifestly erred in holding to the contrary.

DAMAGES AND ATTORNEY’S FEES

Plaintiffs claim that they are entitled to attorney’s fees and damages, i.e., their expenses in traveling from Odessa, Texas to the Village of Converse and mental anguish. Although plaintiffs introduced evidence at trial of the expenses they incurred in traveling to Converse, they have provided us no basis or authority for an award of attorney’s fees and damages against the Village. The Village had specific statutory authority to pursue the course of action taken. Its attempt was not arbitrary or in bad faith. Plaintiffs are not entitled to the recovery of damages or attorney’s fees.

For the above and foregoing reasons, the judgment of the trial court insofar as it affirms the order of the Town Council of Converse ordering demolition of the plaintiffs’ building is reversed and judgment is rendered in favor of plaintiffs vacating and setting aside the condemnation order of the Town Council of Converse. The judgment of the trial court is affirmed insofar as it dismissed plaintiffs’ claim for damages and attorney’s fees. Costs on appeal and in the trial court, to the extent allowed by law, are assessed against defendant, the Village of Converse.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

MOTION FOR REHEARING

We have granted a rehearing in this matter for the sole purpose of correcting our original opinion, rendered on November 9, 1983, which opinion incorrectly stated that the plaintiffs-appellants failed to perfect their suspensive appeal by timely filing the proper bond. After our opinion was rendered, the attorney for the plaintiffs-appellants furnished us with a receipt from the Clerk of Court, Parish of Sabine, Eleventh Judicial District Court showing that a cash bond had been timely filed but inadvertently omitted from the record.

For the reasons assigned, our opinion is hereby amended to read “the Tatums were granted and perfected a suspensive appeal” which will replace the language “the Ta-tums were granted a suspensive appeal but failed to post bond. The appeal is therefore devolutive.” In all other respects our opinion and judgment as originally rendered is maintained.

REHEARING GRANTED AND OPINION AMENDED.

      . Although it is not made clear in the record, apparently William Dyess received his appointment from the Eleventh Judicial District Court. LSA-R.S. 33:4762(B) provides for service of notice upon an attorney appointed to represent the absentee owner by the Mayor of the Village.

      . LSA-R.S. 33:4762 provides in pertinent part as follows:
      “A. Before the governing authority may condemn any building or structure, there must be submitted to it a written report recommending the demolition or removal of the building signed by some city official or other person authorized to act in such matters for the municipality. The mayor or chief executive shall thereupon serve notice on the owner of the building or structure requiring him to show cause at a meeting of the governing authority, regular or special, why the building or structure should not be condemned. The date and hour of the meeting shall be stated in the notice which shall be served at least ten days prior to the date of the hearing, except in case of grave public emergency as hereinafter provided. The notice may be served by the marshal of the municipality or by any sheriff or deputy sheriff or constable having jurisdiction and power to serve legal process where the owner of the building or structure is found in the state of Louisiana, and the officer shall make return of the service as in ordinary cases.
      B. If the owner is absent from the state or unrepresented therein, then the notice shall be served upon the occupant of the condemned building or structure, if any, and also upon an attorney at law appointed by the mayor to represent the absentee. Domiciliary service may be made as in ordinary cases.”

      . In Housemaster Corp. v. City of Kenner, supra, our Supreme Court determined that formal notice upon the actual owner pursuant to the provisions of 33:4762 was sacramental to the validity of any subsequent resolution by the governing body ordering the condemnation and demolition of a building under the authority of LSA-R.S. 33:4764 et seq.

      . Although the record indicates that the building was run down and basically an eyesore, the only evidence of dilapidation which presented a danger to the public welfare pertained to the south wall. The sills, studs and floor joists were rotted and the wall had no support.


author: DOMENGEAUX, Judge.

text:
    LAKE CHARLES MEMORIAL HOSPITAL, Plaintiff-Appellee, v. Roselie SINEGAL, Defendant-Appellee, v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Defendant-Appellant.
    No. 83-201.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Plauche, Smith & Nieset, Michael J. McNulty, III, Lake Charles, for defendant-appellant.
    Wilford D. Carter, Lake Charles, for defendant-appellee.
    Stockwell, Sievert, Yiccellio, Clements & Shaddock, Stephen Polito, Lake Charles, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

The only issue presented on appeal in this case, Lake Charles Memorial Hospital v. Roselie Sinegal, and the case of Roselie Sinegal v. Louisiana Health Service & Indemnity Company (Blue Cross), 440 So.2d 1358 (Our No. 83-202) (La.App. 3rd Cir.1983), which cases were consolidated at trial, is whether Blue Cross is responsible for certain hospital expenses in the amount of $2,399.40 incurred by Roselie Sinegal, its insured, as a result of Mrs. Sinegal’s hospitalization at Lake Charles Memorial Hospital.

On August 1,1980, a policy of hospitalization and major medical insurance was issued by Blue Cross to Mrs. Sinegal. The policy insured her, among other things, against expenses incurred due to hospital confinement.

On October 31, 1980, Mrs. Sinegal was hospitalized for eight days in Lake Charles Memorial Hospital for treatment of acute pernicious anemia and tests in order to determine the cause of her anemia. Following her release from the hospital Mrs. Sine-gal filed a claim with Blue Cross for recovery of the hospital expenses and medical services. Blue Cross denied coverage on the basis of an exclusionary clause contained in the contract of insurance. The policy states as follows:

“ARTICLE XII — EXCLUSIONS
A. No health care allowance will be provided for:
1. Services rendered during the first year for, or as a result of any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the member’s original effective date regardless of whether the diagnosis, the condition, or the disease has been established.... ”

Inasmuch as Mrs. Sinegal failed to pay her bill, Lake Charles Memorial Hospital sued her for those hospital and medical expenses. In that suit (Our No. 83-201) Mrs. Sinegal third-partied Blue Cross for indemnification. The amount involved was the sum of $2,399.40 plus attorney’s fees. Additionally, Mrs. Sinegal filed a separate suit against Blue Cross for some $600.00 (Our No. 83-202), representing expenses for doctor’s bills and laboratory tests.

At trial Lake Charles Memorial Hospital and Mrs. Sinegal stipulated that she was liable to the hospital for the full amount of the original demand ($2,399.40) as well as attorney’s fees in the amount of $150.00, in addition to court costs and legal interest.

Following trial, judgment was rendered in favor of Lake Charles Memorial Hospital for the stipulated amounts against Mrs. Si-negal, and in favor of Mrs. Sinegal on her third party claim against Blue Cross for indemnification. Blue Cross has appealed.

We are to determine whether the symptoms of Mrs. Sinegal’s anemic condition exhibited themselves before the issuance of the insurance contract, and is thereby subject to the exclusionary clause which denies coverage.

To support the contention that Mrs. Sine-gal is precluded from recovering for the medical services rendered, Blue Cross relies upon the holdings of Smith v. Republic National Life Insurance Company, 335 So.2d 739 (La.App. 2nd Cir.1976), and Hall v. National Life and Accident Insurance Company, 383 So.2d 74 (La.App. 3rd Cir.1980).

In Smith, the court found that the insurance policy did not cover that plaintiff’s sickness because the condition of the disease first manifested itself prior to the application for insurance.

In Hall, this Court held that hospitalization for treatment of sicknesses which existed prior to the issuance of the insurance contract was not covered under the terms of the contract. The record in Hall substantiated the factual findings made by the trial judge. The trial judge determined that the plaintiff in that case did not contract the sicknesses after the requisite 28-day suspensive period from the effective policy date. The plaintiff in Hall admitted at trial that he had been hospitalized for the identical disorders shortly before applying for the hospitalization insurance at issue. Further, that plaintiff’s treating physician stated in a report filed into evidence that the plaintiff’s hospitalization was the result of recurring sicknesses which predated the insurance policy by at least six years. The court ruled, in pertinent part, that:

“[sjince the sicknesses for which the plaintiff was hospitalized in July, 1977, existed prior to the issuance of the policy, the policy did not provide coverage for the expenses incurred by plaintiff in the July, 1977, hospitalization.”
At 75.

In the case sub judice, however, the record confirms the trial court’s judgment that recovery should be allowed on behalf of the plaintiff. The factual findings made by the trial judge are supported by reasonable inferences of credibility and from medical testimony and hospital records. ■

The appellate court should not disturb factual findings in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In our review of the facts we determine that there is a reasonable factual basis for the findings of the trial court; we further determine that the record establishes that the finding was not clearly wrong. Arceneaux, at 1333.

The burden of proof rests with the insurer to establish a pre-existing condition of the insured. See Dance v. Southern Surety Co. of New York, 16 La.App. 373, 134 So. 725 (La.App. 2nd Cir.1931). We conclude that there was no manifest error in the trial judge’s conclusion that the evidence failed to establish that Mrs. Sinegal’s condition existed prior to the effective date of the insurance policy. The evidence disclosed at trial did establish that on June 30th and July 1st, 1980, Mrs. Sinegal exhibited symptoms of shortness of breath, tension headaches, nervousness, fatigue, and weakness. During the office visit with Ben Guilbeau, M.D., Mrs. Sinegal’s physician of ten years, the condition was diagnosed as anxiety and depression. Because of financial reasons, she then went voluntarily to Moss Regional Hospital (a charity hospital) on July 1, 1980, for further diagnosis and treatment. Mrs. Sinegal related the same symptoms to the attendant out-patient physician at Moss Regional Hospital. She was treated with tranquilizers after a diagnosis of tension headaches and anxiety. She was then sent home. It was noted on her hospital chart that her condition had improved upon being released.

At trial, both Doctor Anderson (Doctor Guilbeau’s partner who admitted Mrs. Sine-gal to Lake Charles Memorial Hospital on October 31,1980) and Doctor Guilbeau testified that the symptoms which Mrs. Sinegal complained of could be attributed to anemia or to several other conditions, including anxiety and depression. Doctor Anderson further testified that in his opinion, on October 31, 1980, Mrs. Sinegal suffered from severe anemia (based upon the classic symptoms displayed and the blood tests conducted in the office) which he said was probably “a longer standing” anemia. Doctor Anderson related this condition back to June of 1980, as indicated by the medical history taken from the patient. However, Doctor Guilbeau testified that the diagnosis of anxiety in June — July of 1980, was definite and unquestionable “regardless if she [Mrs. Si-negal] was anemic or not.” Doctor Guil-beau further testified at trial that during the ten years that Mrs. Sinegal had been his patient she had never been anemic, that he first became aware of her anemic condition in November of 1980, and that it was impossible to state exactly when the anemia began. Doctor Guilbeau could not determine with any medical certainty the period of time in which the anemic condition commenced.

Considering this evidence as a whole, there has been no showing of manifest error on the part of the trial judge in finding that the insurer had failed to establish that the insured’s symptoms in June — July, 1980, conclusively resulted from the condition of acute pernicious anemia. See Cunniffe v. American Security Life Insurance Company, 165 So.2d 39 (La.App. 4th Cir.1964). Additionally, we do not perceive any manifest error in the trial judge’s determination that the evidence was insufficient to show that the insured’s condition existed prior to the effective date of the insurance contract or that the medical services rendered in October — November, 1980, were for an ailment, disease, or physical condition, the symptoms of which exhibited themselves before the effective date of the policy. See Cunniffe, at 42.

For the above and foregoing reasons the judgment of the trial court is affirmed, with all costs assessed against Blue Cross.

AFFIRMED.

      . Mrs. Sinegal’s additional claim in that suit was denied, and she has not appealed that adverse judgment. Blue Cross however has appealed even though Mrs. Sinegal was denied recovery in that suit. We surmise inasmuch as the trial court judgment listed both consolidated cases in its caption and Blue Cross’ appeal was likewise captioned, that Blue Cross’ appeal in No. 83-202 was inadvertent. Under these circumstances, there is nothing to review, hence we will dismiss that appeal. La.C.C.P. Arts. 2082, 2083, 2133; Bond v. Commercial Union Assurance Companies, 387 So.2d 617 (La.App. 3rd Cir.1980), reversed in part on other grounds, 407 So.2d 401 (La.1981).


text:
    Roselie SINEGAL, Plaintiff-Appellee, v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Defendant-Appellant.
    No. 83-202.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Plauche, Smith & Nieset, Michael J. McNulty, III, Lake Charles, for defendant-appellant.
    Wilford D. Carter, Lake Charles, for defendant-appellee.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Stephen Polito, Lake Charles, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in Lake Charles Memorial Hospital v. Roselie Sinegal, 440 So.2d 1358 (La.App. 3rd Cir.1983), footnote 1, handed down this day, the appeal of Louisiana Health Service and Indemnity Company is hereby dismissed at its costs.

APPEAL DISMISSED.