author: DENNIS, Justice. WATSON, Justice,

text:
    Norman C. FRANCIS, et al v. Ernest N. MORIAL, et al.
    No. 84-CA-0159.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      Mack E. Barham, John Whitney, Thomas G. Gruenert, Barham & Churchill, George W. Reese, Charles H. White, New Orleans, for plaintiffs-appellees.
    H.A. Vondenstein, Parish Atty., James S. Arceneaux, Asst. Parish Atty., George Gia-cobbe, Kenner, Harry J. Morel, Jr., Dist. Atty., Steve Griffith, Asst. Dist. Atty., William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Melissa F. Keegan, Staff Atty., New Orleans, for defendant-appellants.
    Salvador Anzelmo, City Atty., Thomas W. Milliner, Deputy City Atty., for Defendant-Appellees.
   DENNIS, Justice.

We are called upon to decide whether an act of the legislature altering the procedure for selecting members of a home rule municipality’s administrative board should be upheld as necessary to prevent abridgement of a reasonable exercise of the state’s police power or stricken as an interference with local deployment of home rule charter powers and functions prohibited by the state constitution. A suit was brought by the present members of the municipal board to have the statute declared unconstitutional and to enjoin its enforcement. After a hearing, the trial court declared the act unconstitutional and permanently enjoined its implementation. The attorney general intervened to assert and protect the rights and interests of the state, La. Const., Art. IV, § 8, and appealed directly to this court. La.Const., Art. V, § 5(D). We affirm. The Louisiana Constitution of 1974 delegates powers and functions to home rule charter governments and grants them the discretion to deploy their powers and functions on the local level. The legislature by a general law may deny or revoke the initial delegation of home rule powers and functions;, no law may revoke, change or affect a home rule government’s discretion to deploy its powers and functions, however, unless it is necessary to prevent an abridgement of the reasonable exercise of the state’s police power. The act of the legislature in the present case is prohibited by the constitution because it changes the distribution and organization of home rule powers and functions and is not reasonably necessary and appropriate for the accomplishment of a legitimate object of the police power.

The City of New Orleans, located in the parish of Orleans, owns and operates an airport located in the City of Kenner and the parishes of Jefferson and St. Charles. The New Orleans home rule charter establishes an aviation board consisting of five members to be appointed by the Mayor with the approval of the city council. The charter provides that the functions of the board shall be to administer, operate and maintain all city airports, represent the City in all aeronautical consultations with state, national or international agencies, and appoint an Aviation Director to serve at its pleasure. Charter § 5-702. Before adoption of the 1974 Louisiana Constitution, the legislature by Act 424 of 1972 expanded the board to nine members and prescribed, in effect, that two members must either reside or have a business located in Jefferson and St. Charles Parishes. The constitutionality of this change in composition and residence or principal place of business requirement is not challenged by this lawsuit.

The act in question in this case, Act 25 of 1983, amended and reenacted the prior law by changing and affecting the membership of any airport board of a city located outside the parochial site of its airport, in pertinent part, as follows: (a) the board shall include one additional member, to be appointed by the mayor and approved by the governing authority, from a list of two names submitted by the chief executive of each parish in which the airport is located; (b) if the airport is located within a municipality, the board shall include two additional members to be appointed from a list of four names submitted by the mayor of the municipality in which any part of the airport is located; (c) if the mayor of the city which owns the airport fails to make the appointments timely upon receipt of the lists or if the governing authority fails to approve his appointments timely, the chief executives and the mayor submitting the lists shall make the appointments with approval of their respective governing authorities.

New Orleans is the only city affected by this legislation. In effect, the statute permits the City of Kenner, the Parish of Jefferson and the Parish of St. Charles to choose four of the nine members of the New Orleans aviation board.

Before any appointments were made pursuant to the act, the members of the New Orleans Aviation Board brought this suit to have the statute declared unconstitutional. After a hearing, the trial court declared the statute unconstitutional and enjoined its enforcement. In oral reasons for judgment, the trial court declared the act unconstitutional as an invasion of a home rule charter which changed and affected the structure and organization of the local government. The attorney general intervened and appealed.

Article VI of the 1974 Louisiana Constitution promotes the autonomy of home rule governments by delegating to them broad revocable powers and functions. Section 4 permits each preexisting home rule charter government to retain the powers, functions and duties in effect in its charter when the constitution was adopted, except as inconsistent with the constitution, and to add to its charter any power or function granted by the constitution to other local governments if its charter permits. Section 5 sets forth procedures by which a home rule charter may. be adopted and authorizes a home rule government to assume any power or function necessary, requisite or proper for the management of its affairs, not denied by general law or inconsistent with the constitution. Consequently, a home rule charter government possesses, in affairs of local concern, powers which within its jurisdiction are as broad as that of the state, except when limited by the constitution, laws permitted by the constitution, or its own home rule charter.

The constitution in article VI also fosters local self-government by granting to home rule bodies the discretion to deploy their powers and functions on the local level, which may not be revoked, changed or affected by law unless necessary to prevent an abridgement of the reasonable exercise of the state’s police power. Section 6 provides that no law shall change or affect the structure and organization or the particular distribution and redistribution of the powers and functions of such local governments. Section 9(B) provides that, notwithstanding any provision of Article VI, the police power of the state shall never be abridged. In the present case, the tension between home rule discretion and state police power calls upon us to reach a more complete understanding of these concepts in order to accommodate these constitutionally protected interests.

Section 6 was added to the local government article to protect home rule charter governments from unwarrantable interference in their internal affairs by state government. It is clear from the convention proceedings and the words of Section 6 that it was intended to prevent the legislature from substituting its judgment for that of the home rule government with respect to the arrangement of the various offices, departments, agencies and elements of the local government, and as to the assignment, allocation or distribution of purposes, work, authority and capacities among them. Unless the constitution elsewhere provides justification for such an intrusion, any state law which changes or affects, i.e., produces an alteration in or material influence upon, the local government’s structure and organization or the distribution or redistribution of its powers and functions is prohibited. VII Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 1341, 1361 [hereinafter referred to as Records]. See also Murchison, Developments in the Law, 1982-1983 — Local Government Law, 44 La.L.Rev. 373, 389 (1983); Murchison, Developments in the Law, 1979-1980 — Local Government Law, 41 La.L.Rev. 483, 485 (1981); Kean, Local Government and Home Rule, 21 Loy.L.Rev. 63, 66 (1975); Comment, Exclusive Powers of Louisiana Home Rule Municipalities and Parishes, 23 Loy.L.Rev. 961 (1977).

As a counterbalance, to preclude the danger that the powers and defenses afforded local government would be used to deprive the state government of its necessary inherent powers, Article VI, Section 9(B) provides that “[notwithstanding any provision of this Article, the police power of the state shall never be abridged.” This provision is almost identical to formulations set forth in the 1913, 1918, and 1921 Louisiana constitutions. After tentatively adopting a different, perhaps more expansive affirmation of police power, the framers of the 1974 Louisiana constitution ultimately opted to retain the traditional language and its more settled meaning.

The decisions of this court and others establish principles governing the exercise of the police power and the prevention of its abridgement with which the delegates were familiar. Although the police power is not susceptible to precise definition except on a case by case basis, it has been described generally as the inherent power of the state to govern persons and things, within constitutional limits, for the promotion of general security, health, morals and welfare. Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943); State v. Malory, 168 La. 742, 123 So. 310 (1929); VII Records 1445 (statement of Delegate Avant), 1454 (statement of Delegate Casey). The police power extends only to such measures as are reasonable, however, and all police regulations must be reasonable under all the circumstances. Schwegmann Bros. v. La. Bd. of Alcoholic Bev. Control, 216 La. 148, 43 So.2d 248 (1949); VII Records 1446 (statement of Delegate Avant). In order for a police measure to be reasonable, the means adopted must be reasonably necessary and appropriate for the accomplishment of legitimate objects falling within the scope of the power. Schwegmann Bros. v. La. Bd. of Alcoholic Bev. Control, 216 La. 148, 43 So.2d 248 (1949). Accordingly, the measure must tend toward the accomplishment or promotion of such purpose in a degree that is reasonably perceptible and clear. Id.; City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523 (1939); Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917); State ex rel. Wilcox v. Gilbert, 126 Minn. 95, 147 N.W. 953 (1914); St. Louis Southwestern Ry. Co. of Texas v. Griffin, 106 Tex. 477, 171 S.W. 703 (1914). To sustain legislation under the police power, the courts must be able to see that its operation tends in some degree to prevent an offense or evil or otherwise to preserve public health, morals, safety or welfare, Eros v. Powell, 137 La. 342, 68 So. 632 (1915); Hi-Lo Oil Co. v. City of Crowley, 274 So.2d 757 (La.App.3d Cir.), writ refused, 277 So.2d 673 (La.1973), and if a statute discloses no such purpose, has no real or substantial relation to these objects, or is a palpable invasion of rights secured by fundamental law, it is the duty of the courts so to adjudge and thereby give effect to the constitution. Id.; State ex rel Galle v. N.O., 113 La. 371, 36 So. 999 (1904). It is only because the welfare of the whole people so far outweighs the importance of the individual whose rights are interfered with by an exercise of the police power that such interference with constitutional guarantees can be justified. See City of Shreveport v. Curry, 357 So.2d 1078 (La.1978); Appeal of Meserve, 120 N.H. 461, 417 A.2d 11 (1980); Town of Bay Harbor Islands v. Schlapik, 57 So.2d 855 (Fla.1952); 16A Am.Jur.2d, Constitutional Law, § 415. To be truly in the public welfare, therefore, legislation must confer upon the public benefits commensurate with its burdens upon other protected interests. Banjavich v. La. Licensing Bd. for Marine Divers, 237 La. 467, 111 So.2d 505 (1959); Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70 (1941); 16A Am.Jur.2d, Constitutional Law, § 415. The police power does not justify an interference with constitutional rights which is entirely out of proportion to any benefit redounding to the public. Myers v. City of Defiance, 67 Ohio App. 159, 36 N.E.2d 162 (1940); Am.Jur.2d, Constitutional Law, § 415.

It is therefore self-evident that Article VI of the 1974 Louisiana constitution strikes a different balance of power between the state legislature and home rule governments than that which existed under previous constitutions. Home rule entities must be regarded as more than creatures of the legislature, since their powers and functions are granted directly by the constitution and their discretion of deployment is constitutionally preserved against undue interference. Kean, supra at 66; Murchison, supra 41 La.L.Rev. 483, at 487-88. Home rule abilities and immunities are bestowed by the constitution in terms too full and general to warrant narrow construction of them by the courts. Kean, supra at 66. The framers also regarded the principles which courts have developed in accommodating individual rights with the state’s exercise of its police power as analogously applicable to the resolution of conflicts between police measures and the new constitutionally protected rights of home rule governments. E.g., VII Records 1446 (statement of Delegate Avant). This transformation in the constitutional philosophy of local government calls for a corresponding adjustment in the judicial attitude toward home rule prerogatives. VII Records 1363-71; City of New Orleans v. State, 426 So.2d 1318, 1322 (La.1983) (concurring opinion); City of Shreveport v. Kaufman, 353 So.2d 995 (La.1977); Kean, supra; Murchison, supra. Hence, it is appropriate that home rule powers, functions and immunities should be construed fairly, genuinely and reasonably and any claimed exception to them should be given careful scrutiny by the courts. VII Records 1415-16.

Applying these precepts to the case at hand, we conclude that the trial court correctly declared Act 25 of 1983 unconstitutional because (a) the act purports to change the New Orleans home rule charter’s distribution of powers and functions pertaining to the selection and appointment of aviation board members in violation of Article VI, Section 6, and, (b) the act does not constitute a reasonable exercise of police power under Article VI, Section 9(B) so as to qualify as an exception to the prohibition against state interference with home rule discretion.

Act 25 of 1983, in effect, authorizes the chief executive officers of the City of Kenner, Jefferson Parish and St. Charles Parish to select four of the nine members of the New Orleans Aviation Board. Prior to this act only duly elected officers of the City of New Orleans were authorized to participate in selecting members of the board which administers the city’s airports. The act therefore clearly purports to change the home rule government’s distribution of the power and the function of selecting four board members by redistributing this faculty to public officials of other local governments. Enforcement of the act probably also would affect or materially influence the organization of the city’s aviation board by installing thereon a large minority contingent representing three other local governments. It is needless for us to consider whether the statute affects home rule structure and organization, however, because the act clearly changes the distribution of home rule powers and functions.

Considering all of the circumstances, it is not reasonably clear that Act 25 of 1983 constitutes a reasonable exercise of the state’s police power. We are unable to see that its operation would tend in some degree to prevent an offense or evil or otherwise to preserve public health, morals, safety or welfare. It is, of course, possible to conceive of legislation affecting airports or a reasonable classification of airports that reasonably may be necessary and appropriate to promote objects within the ambit of the police power. Act 25 of 1983, however, discloses no such purpose and does not appear to have any real or substantial relation to these objects; it merely redistributes the power and function of selecting a minority of the aviation board from the New Orleans officials to those of three other local governments. Even if we were to assume that the act would tend toward the accomplishment of a valid police power object in some slight degree, the small public benefit which might be conferred would not be commensurate with the interference and burdens placed on the home rule government.

In addition to arguments on the foregoing issues, the attorney general contends that Act 25 of 1983 is constitutional because it is a general, not a local or special, law. Implicitly, his rationale is as follows: Article VI, Section 5(E) provides that the legislature may by general law deny home rule governments any power or function authorized therein; Act 25 of 1983 is a general law; therefore, Act 25 of 1983 constitutionally denies powers and functions to the home rule government.

Act of 25 of 1983 does not deny any power or function originally delegated to the home rule government, however. It does not take away the City’s power to administer its airports through an aviation board. Instead, it changes the distribution of this power and function at the local level. Even if we assume that the law is a general one, a matter regarding which there is reason for doubt, it is prohibited because it changes a home rule government’s distribution of its powers and functions in violation of Article VI, Section 6. In order for a law changing or affecting a local government’s deployment of its powers and functions on the local level to be sustained by the courts, the act must be necessary to prevent abridgement of a reasonable and valid exercise of the state’s police power. Since we have determined that Act 25 of 1983 does not constitute such a law, there does not appear to be any basis upon which it can be sustained.

Accordingly, the judgment of the trial court declaring Act 25 of 1983 unconstitutional and enjoining its enforcement is affirmed.

AFFIRMED.

WATSON, J., concurs and assigns reasons.

WATSON, Justice,

concurring.

I join in the reasons assigned by the majority, but would add that the City of New Orleans owns the airport just as it owns Audubon Park. Therefore, a similar issue is presented and should be decided with the same result as in City of New Orleans v. State, 443 So.2d 562 (La., 1983).

      . Section 4: Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.

      . Section 5:
      (A) Subject to and not inconsistent with this constitution, any local governmental subdivision may draft, adopt, or amend a home rule charter in accordance with this Section. The governing authority of a local governmental subdivision may appoint a commission to prepare and propose a charter or an alternate charter, or it may call an election to elect such a commission.
      (B) The governing authority shall call an election to elect such a commission when presented with a petition signed by not less than ten percent of the electors or ten thousand electors, whichever is fewer, who live within the boundaries of the affected subdivision, as certified by the registrar of voters.
      (C) A home rule charter shall be adopted, amended, or repealed when approved by a majority of the electors voting thereon at an election held for that purpose.
      (D) Two or more local governmental subdivisions within the boundaries of one parish may adopt a home rule charter under this Section if approved by a majority of the electors in each affected local governmental subdivision voting thereon in an election held for that purpose. The legislature shall provide by law the method of appointment or election of a commission to prepare and propose a charter consistent with Paragraph (A) of this Section and the method by which the electors may petition for an election consistent with Paragraph (B) of this Section. However, at least one member of the commission shall be elected or appointed from each affected local governmental subdivision.
      (E) A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.
      (F) Except as prohibited by its charter, a local governmental subdivision adopting a home rule charter under this Section shall have the additional powers and functions granted to local governmental subdivisions by other provisions of this constitution.
      (G) No home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner, which is inconsistent with this constitution or law.

      . Section 6: The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.

      . 1898 and 1913 La. Const., Art. 263, provided: "The exercise of the police power of the state shall never be abridged nor so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.”
      1921 La. Const., Art. XIX, § 18, provided: “The exercise of the police power of the State shall never be abridged.”

      . "Notwithstanding any provision of any plan of local government or any home rule charter, or other provision of this article, the legislature may by general law applicable throughout the state or based upon any reasonable classification exercise the police power of the state in the parishes, municipalities, and other local governmental subdivisions of the state." VII Records 1445.

      .See VII Records 1445-60. Delegate Burson set forth the concerns of the delegates prompting them to adopt the present language of Section 9(B) when saying that the language “was taken verbatim from the present constitution. It has a well defined historical meaning. It seems to me that we ought to be very careful, indeed before we adopt new language, undefined, that is so broad sweeping that it would easily be open to the interpretation of an all encompassing central power.” VII Records 1455.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    Constance A. OTTO v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 83-C-0620.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Thomas L. Giraud, Charles A. Verder-ame, Giraud, Cusimano & Verderame, New Orleans, for applicant.
    Edward P. Lobman, Alice M. Lewis, Lob-man & Carnahan, Metairie, for respondent.
   LEMMON, Justice.

This case involves a highway collision between plaintiff’s automobile and an oncoming 18-wheel tractor-trailer which occurred in the truck’s lane of traffic. Plaintiff’s suit against her uninsured motorist carrier alleged that she was struck in the rear by an unknown motorist, causing her to lose control. The trial court dismissed plaintiff’s suit on the basis that plaintiff was presumed to be negligent because the collision occurred in the opposing lane of traffic. The court of appeal affirmed on the basis of the manifest error rule. 426 So.2d 709 (La.App.1982). We granted certiorari. 433 So.2d 157 (La.1983). Concluding that it was improper for the trial court to apply such a presumption in a liability determination between the plaintiff and a party other than the motorist in whose lane plaintiff collided, we reverse the judgment and render judgment in favor of plaintiff on the basis of the evidence in the record.

The accident occurred in mid-afternoon on a clear, dry day on a two-lane highway. The left front of plaintiff’s car struck the front left side of an oncoming tractor-trailer unit driven by Lipton Rivet, after Rivet attempted to pull onto the right shoulder to avoid the collision. Plaintiff’s car bounced off the truck and came to rest across the road, perpendicular to her prior path of travel, near the point of impact. The truck came to rest in the ditch, forward from the point of impact. There were skid marks only in the truck’s lane.

According to plaintiff’s testimony, she had been traveling west at a speed of approximately 40 miles per hour behind a passenger car when the traffic in front of her suddenly slowed. She felt a “tap or little bump” and saw through the rearview mirror a woman in a camper or van immediately behind her. The woman suddenly hit her again and pushed her into the opposing lane of traffic, and she remembered nothing further (not even seeing the 18-wheel tractor-trailer). However, she expressly denied at trial that she had attempted to pass the preceding vehicles.

Because she was unconscious after the accident, plaintiff could not then relate her version of the occurrence. Consequently, the investigating officers did not search for debris in the area of the claimed first impact or for a witness to that collision. When the tube was removed from plaintiff’s throat seven weeks after the accident, she immediately told the story she related in her trial testimony.

In support of her claim, plaintiff introduced a photograph taken by police at the scene, which showed damage to plaintiff’s car on the extreme right of the bumper and on the right rear fender, as well as an extensive scratch along the side of her right rear fender and right rear door. Those damages do not appear to be related to the damage to the left front area of plaintiff’s car which was sustained in the collision with the truck. She also presented the testimony of her son and daughter-in-law, who stated that they were familiar with plaintiff’s car (which formerly belonged to plaintiff’s son), that they had washed and waxed the car two weeks before the accident and had parked behind the car in plaintiff’s driveway on the morning of the accident, and that there were no dents on the rear of the vehicle prior to the accident except for a small dent on the bottom of the middle section of the bumper.

Deborah Rees, who was driving the passenger car directly in front of plaintiff, gave a statement (to defendant’s adjuster) which was introduced into evidence by stipulation. Plaintiff’s car had been directly behind her for several miles while she was driving about 45 miles per hour in heavy traffic. Just before the accident, she glanced into her rearview mirror and saw plaintiff’s car in the eastbound lane of traffic, and immediately thereafter she saw the collision. She did not know how plaintiff’s car got into the eastbound lane. Miss Rees’ mother, who was a passenger in the vehicle driven by her daughter, corroborated plaintiff’s claim of a slow-down in traffic just prior to the accident by testifying that a slow-moving vehicle directly in front of them made a left turn from the highway about 200 yards before the point of the accident.

Paul Polos, a passenger in Rivet’s truck, testified that plaintiff suddenly came out of bumper-to-bumper traffic, almost hitting the car in front of her, and appeared suddenly in their lane in front of them. He stated that her head was down on the steering wheel when he saw her about 15 feet away.

Rivet testified by deposition following the trial that plaintiff moved into his lane of traffic, about 40 yards ahead of him, that she “came around a van and a camper”, and that “it looked like she was trying to pass them”. In an attempt to avoid the collision, he slowed down and pulled as far over to his right as possible. Immediately before the collision, he saw plaintiff’s head lowered onto the steering wheel. At no time did his vehicle make any contact with the rear of plaintiffs car. Interestingly, he emphatically stated that the van was directly in front of plaintiffs car (directly contrary to the testimony of Miss Rees and her mother that plaintiff had been following directly behind them for several miles and also contrary to Polos’ testimony that plaintiff as she pulled out almost hit the car in front of her) and that a camper (or “home on wheels”) was in front of the van. He further stated that a woman was driving the camper, that plaintiff was at a point between the van and the camper when the collision occurred, and that the camper and van had pulled partially off the highway at the moment of impact.

The trial court, in reasons for judgment, determined that plaintiff, in addition to the burden of proving the accident was caused by the negligence of the unknown hit-and-run driver, also had the burden of overcoming the presumption of her own negligence on the basis that the accident occurred in the opposing lane of traffic. Concluding that plaintiff had not borne this higher burden, the court rendered judgment in favor of defendant. The court of appeal, without discussing this additional burden of proof imposed upon plaintiff, held that the trial court was not manifestly erroneous in concluding that plaintiff had failed to prove by a preponderance of the evidence that she was struck from the rear by a third vehicle.

The presumption applied by the trial court has been invoked by defendants when the evidence showed that the defendant-motorist was in his proper lane of traffic at the time of the collision and the plaintiff-motorist was not. Noland v. Liberty Mutual Ins. Co., 94 So.2d 671 (La.1957); Meskill v. Allstate Ins. Co., 247 So.2d 163 (La.App. 3rd Cir.1971). Whatever validity such a presumption would have had if plaintiff in this case had sued the tractor-trailer driver, no such presumption flows in favor of a motorist who allegedly ran into the rear end of plaintiffs vehicle in plaintiffs own lane. Neither can the presumption favor plaintiffs uninsured motorist carrier, who is contractually liable to pay the damages the hit-and-run motorist would be legally liable to pay. Plaintiffs only burden of proof was to show by a preponderance of the evidence that she had been struck in the rear in her lane of traffic by a hit-and-run driver and that this impact caused her to veer into the opposite lane of traffic.

The trial judge erred in applying incorrect law to the facts of the case. When the trial court applies the wrong law, no weight should be accorded to the judgment of the trial court, and the manifest error rule does not apply. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Gonzales v. Xerox Cory., 320 So.2d 163 (La.1975). The court of appeal, therefore, improperly relied on the manifest error rule. Accordingly, the judgments of both lower courts must be set aside.

When a judgment of the court of appeal is reversed because of incorrect application of the manifest error rule, the normal procedure would be to remand to the court of appeal for determination of liability and quantum on the basis of the record. However, the parties have stipulated that, if plaintiff is entitled to recovery, her damages exceed the limits of insurance coverage. Because of this stipulation, and because it was necessary for this court to review the entire record on liability in order to decide that the manifest error was applied erroneously, judicial efficiency dictates disposition of the liability issue by this court.

We have independently reviewed the record, without according any weight to the erroneous trial court judgment, and have determined that plaintiff is entitled to recovery on the record. There was uncon-tradicted evidence that the rear end of plaintiffs car had considerable damage after the accident which had not been there earlier that day. Rivet disclaimed any contact between his truck and the rear of plaintiffs car. The additional damage to the right rear bumper and right fender does not appear to be the result of the truck’s impact with plaintiffs left front. Moreover, an impact to the right rear is the type of impetus which would propel a moving car to the left of the prior path of travel.

Plaintiffs testimony that she was following a car was corroborated by Miss Rees, Mrs. Rees and Polos, all of whom contradicted Rivet’s confusing testimony about plaintiff’s attempt to pass a van and camper. Still, Rivet’s testimony did corroborate the presence of a camper driven by a woman, as claimed by plaintiff.

Certainly, the oncoming 18-wheel tractor-trailer was visible to one in plaintiff’s position who might contemplate a passing maneuver. Moreover, plaintiff had no reason to pass a car she had been following for several miles in heavy traffic when she was to make a right turn off the highway about half a mile from the accident. Finally, a passing attempt in heavy traffic by plaintiff at that point in time was unlikely, in view of Mrs. Rees’ testimony that a slow-moving vehicle had just turned off the road and her daughter had just accelerated for about 200 yards when the accident occurred.

For these reasons, the judgment of the lower courts are reversed, and judgment is rendered in favor of Constance A.'Otto and against State Farm Mutual Automobile Insurance Company in the amount of $100,-000, together with legal interest from the date of judicial demand until paid, and for all costs of these proceedings.

       Bailes, Justice, ad hoc, sitting for Justice Marcus.

      . The officer testified that he photographed the obvious damage on the rear of plaintiff's car "to indicate any other damage that might have occurred”, but that there was no indication that the damage in that area was caused by the collision with Rivet's truck.

      . Rivet also testified that he gave a statement to his employer after the accident. Contending that he had sought such a statement by interrogatories and been informed that no statement had been taken, plaintiff’s counsel filed a motion in the court of appeal to remand the case to permit further cross-examination of Rivet. Counsel reurges that motion, contending that Rivet's statement (finally obtained after the trial court rendered judgment) contains a diagram showing plaintiff's path at an angle, inconsistent with the appearance of a normal passing maneuver.


text:
    Rev. Ezzard E. BOWMAN v. TWENTY FOURTH JUDICIAL DISTRICT COURT CLERK OF COURT & Judge Lionel R. Collins, Division “L”.
    No. 84-CC-1056.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In Re: Rev. Ezzard E. Bowman, applying for Reconsideration of Denied Writ of June 25,1984, 452 So.2d 692; to the 24th Judicial District Court, Parish of Jefferson, Number 285-851 “L”; Fifth Circuit Court of Appeal, Number 84-C-175.

Denied.

CALOGERO, Justice, concurs.

This Court had access to relator’s Fifth Circuit Application when it earlier denied relator’s application.


author: WATSON, J.,

text:
    STATE of Louisiana v. Leroy GAINES.
    No. 84-K-1268.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In Re: Leroy Gaines, applying for Writ of Certiorari to the First Circuit Court of Appeal, Number KA-83-1426, 452 So.2d 239; 20th Judicial District Court, Parish of West Feliciana, Number W-83-5-686, Division B.

Granted as to sentence only. In the absence of further reasons, the sentence appears to be excessive. The sentence, is set aside and the case remanded for resentenc-ing after reconsideration.

WATSON, J.,

joins in the grant noting

particularly that the fine on top of the jail sentence for this first offender makes the total sentence appear excessive.


author: KLEES, Judge.

text:
    Oliver P. SCHULINGKAMP v. E. Henry HEATON and the City of New Orleans.
    No. CA-1166.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied Sept. 27, 1984.
    Writ Denied Nov. 26, 1984.
    Paul A. Bonin, New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., Joseph N. Naccari, Deputy City Atty., New Orleans, for defendants-appellants.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   KLEES, Judge.

This appeal is from a suit filed by Oliver P. Schulingkamp for recovery of ad valo-rem taxes paid under protest to the City of New Orleans for the years 1980 and 1981. The matter was submitted to the trial court on the basis of documentary evidence and stipulations. Judgment was rendered in favor of the plaintiff, Oliver P. Schulingkamp and against the defendants the City of New Orleans and its assessor E. Henry Heaton. It is from this judgment that the defendants appeal. The issues presented on appeal are 1) whether the improvements taxed by the City are owned by the plaintiff, and (2) if the improvements in question are owned by the plaintiff, then are they subject to the Homestead Exemptions from Ad Valorem taxation as set forth in Article 7, Section 20(A) of the Louisiana Constitution of 1974. In ordering the defendants refund the taxes paid by plaintiff under protest the trial court found that plaintiff was not the owner of the land or the improvements in question and that they were exempt from real estate ad valorem taxes. We disagree and reverse.

On November 26, 1973, plaintiff, Oliver P. Schulingkamp, purchased from McDonald Stephens, all of his right, title and interest in and to Boat House No. N43, located in the City of New Orleans on the North side of New Orleans Marina, which rested on land and water bottom owned by the Board of Commissioners of the Orleans Levee District (Levee Board) leased to plaintiff. The boat house is used as plaintiff’s principal residence.

The Levee Board’s land is exempt from Ad Valorem Taxes under Article 7, Sec. 21 (A) of the 1974 Louisiana Constitution. The defendant, Assessor E. Henry Heaton, assessed Ad Valorem taxes on the boat house (improvements only) but refused to allow a Homestead Exemption to plaintiff. The plaintiff appealed to the Louisiana Tax Commission who upheld the Assessor’s position. The taxes for 1980 and 1981 were paid under protest and this suit was timely filed under Louisiana law. All of the above facts have been stipulated to with the exception of Ownership to the boat house (improvements only).

Plaintiff Schulingkamp, contends that he is not the owner of the improvements. Defendant contends that Schuling-kamp is the owner of the improvements (boat house only). What Schulingkamp purchased in this instance was the right to use a building and improvements situated upon land owned by the Levee Board. The original external structure which has been improved was constructed by the Levee Board upon its property. Lessee’s contract to use and enjoy this property and are permitted to improve it.

The defendants/appellants argue that the plaintiff is the owner of the improvements situated on Site #N-43 in the Orleans Marina. They state that Section XI of the lease governs the ownership of any improvements or constructions made on the property. Section XI states:

“At the expiration of this lease or the cancellation or termination thereof for other lawful cause, the title to all improvements or construction placed on the leased site by Lessee, shall, ipso facto, be vested in the Lessor, without payment or compensation for the costs or value thereof.”

Under the terms of the lease they argue that ownership of improvements is vested in the lessee until such time as the lease expires, is cancelled or terminated at which time title becomes vested in the lessor.

We conclude that this section supports such a proposition.

In City of New Orleans v. S.P. Russ, 27 La.Ann. 413 (1875), the plaintiff sued to recover taxes assessed on buildings and improvements on certain lots, which belonged to the Poydras Female Orphan Asylum. The lots were leased to the defendant’s transferrer for a term of fifty years. The defendant argued that as the property belonged to a tax exempt institution, the buildings and improvements thereon were not subject to taxation. By the terms of the lease the defendant was to build and improve the lots and at the expiration of the lease the asylum would purchase the improvements. The court reasoned that since one could not buy what already belonged to him, then the defendant was the owner of the improvements and liable for the taxes.

The lease provision in question in this case provides for the vesting of title in the Levee Board upon termination, cancellation, renewal, or expiration of the lease. By the same logic how could ownership vest in one who already owns the improvements. The Supreme Court dealt with a similar lease provision in Burbank v. Board of Assessors, 52 La.Ann. 1506, 27 So. 947 (La.1900). It held that until such time as the ownership of the property reverted to the City of New Orleans at the expiration of the lease term that the property was taxable by the City. The Court did not agree with the defendant’s argument that he was not the owner of the improvements, and therefore it was to be tax exempt.

La. Const. Article 7 § 18(B) designates improvements for residential purposes as property subject to ad valorem taxation. The improvements in question here are used as the plaintiff’s residence and as such are taxable by the City of New Orleans. Allowing improvements on tax exempt property to be themselves tax exempt when used for a private purpose would lead to a very inequitable result in this City’s tax scheme. To tax private lessees of private lands and not to tax private lessees of public lands would be unjust and inequitable. We do not believe the tax exemption scheme for public lands was intended to allow some more fortunate individuals to escape taxation by the fact that they lease and reside on public lands. We find that by the terms of the lease with the Levee Board it was intended that the lessee own any improvements until the lease term expired, was cancelled or terminated and that the lessee is therefore liable for ad valorem taxes.

Having reached this conclusion, we must decide if these improvements are subject to the Homestead Exemption from ad valorem taxation.

We agree with the reasons set forth by the trial court denying entitlement to the benefits of a homestead exemption to the plaintiff. The Constitution provides an opportunity for legislative action under La. Const. Art. 7 § 20(B) and to date there has been no relief given in the form of a homestead exemption to residential lessees.

Accordingly, for the reasons stated above, we reverse the judgment of the trial court and grant judgment in favor of defendants E. Henry Heaton and the City of New Orleans and against plaintiff Oliver P. Schulingkamp, dismissing plaintiffs action.

REVERSED.

      .(B) Classification. The classification of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows:
      1. Land 10%
      2. Improvements for residential purposes 10%
      3. Electric cooperative properties, excluding land 15%
      4. Public service properties, excluding land 25%
      5. Other property 15%

      . (B) Residential Lessees. Notwithstanding any contrary provision in this constitution, the legislature may provide for tax relief to residential lessees in the form of credits or rebates in order to provide equitable tax relief similar to that granted to homeowners through homestead exemptions.


author: ALFORD, Judge. PER CURIAM:

text:
    Alice Faye WESLEY, et al. v. CITY OF DENHAM SPRINGS, et al.
    No. 83 CA 0820.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    On Rehearing Sept. 6, 1984.
    Writs Denied Nov. 16, 1984.

      Randall J. Cashio, Baton Rouge, for defendant-appellant Dept, of Transp. & Development.
    Ben L. Guelfo, Baton Rouge, for plaintiff-appellee Alice Faye Wesley, et al.
    Calvin Fayard, Jr., Denham Springs, for defendant-appellee City of Denham Springs.
    James E. Kuhn, Denham Springs, for defendant-appellee Livingston Parish Police Jury.
    James E. Durbin, Denham Springs, for plaintiff-appellee Alice Faye Wesley, et al.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment in favor of plaintiffs-appellees, Alice and Willie Wesley, and against defendant-appellant, State of Louisiana, through the Department of Transportation and Development. The City of Denham Springs and Livingston Parish Police Jury, also named as defendants, were dismissed from the suit prior to trial. The trial court found defendant State strictly liable for the defective condition of Louisiana Highway 16 at the site of the accident, and further, found Alice Wesley ten (10) percent comparatively negligent for her injuries.

The accident in question occurred on June 8, 1981, at approximately noon. Mrs. Wesley testified that she accompanied her husband to Range Avenue (Louisiana Highway 16) in Denham Springs to have a prescription filled at James Drugstore. Louisiana Highway 16, as it passes through the commercial district of Denham Springs, is a two lane concrete surface roadway running north and south. In addition to curbs and sidewalks, parking lanes parallel the traffic lanes. The Wesleys parked their car in a parking lot across the highway from James Drugstore.

Both plaintiffs testified that Mrs. Wesley headed in the direction of the drugstore before her husband. Upon reaching the curve of Range Avenue, Mrs. Wesley paused briefly to check the traffic flow. She then apparently took several steps into the travel lane before stopping again to wait for a break in the traffic. As she again began to cross the highway, she allegedly tripped in a hole in the road surface and was injured. Mr. Wesley, who was locking their car as Mrs. Wesley attempted to cross the highway, ran to his wife and picked her up. Mr. Wesley testified that while he did not see his wife actually fall, her feet were inches from the hole when he picked her up.

At the conclusion of trial, the trial judge ordered the respective counsel to submit proposed findings of fact and reasons for judgment along with post trial memorandums. Judgment was rendered in accordance'with counsel for plaintiffs proposed findings and reasons. The judgment was clearly grounded upon the State’s strict liability for the highway. This being the case, plaintiffs were required to show that the thing causing the injury was in the custody of the State, that the thing causing the harm was defective (i.e. it created an unreasonable risk of harm), and that the defective thing caused this injury. Duffy v. State of Louisiana, Department of Transportation and Development, 415 So.2d 375 (La.App. 1st Cir.1982), writ denied 420 So.2d 448 (La.1982). We are of the opinion that plaintiffs have made the required showing.

Appellant alleges that the trial court erred in finding that the roadway surface irregularity was a cause-in-fact of the accident. We note that while Mrs. Wesley’s testimony is contradictory regarding the exact number of steps she took before her actual fall, we are of the opinion that this does not defeat her claim. Circumstantial evidence to be sufficient, must exclude with a fair amount of certainty every reasonable hypothesis other than that the damages resulted from a breach of duty owed by defendant. Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App.lst Cir.1974), writ denied, 307 So.2d 630 (La.1975). Given that there were not other witnesses to the accident, the deter-minative issue becomes one of credibility. The trial judge, who is in the best position to judge credibility, obviously believed Mr. and Mrs. Wesley and we can not from the record say that he was manifestly erroneous. In the absence of manifest error, the factual determinations of the trial court will not be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant next maintains that the trial court erred in finding that the surface irregularity created an unreasonable risk of harm and in imposing liability for the defect. In Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 (La.1982), the Louisiana Supreme Court has noted,

In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective.) The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liability concepts, the mere fact of the owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in custody presented an unreasonable risk of injury to another, (footnote omitted) Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case.

We are of the opinion that under the particular facts and circumstances of this case, the surface irregularity presented an unreasonable risk of harm to pedestrians crossing Highway 16 at the point in question. Evidence was presented showing a substantial amount of pedestrian and vehicular traffic on Highway 16 at this particular location. At the time of this accident there was no pedestrian crosswalk, and thus, pedestrians wishing to cross Highway 16 were faced with the added peril of waiting for breaks in the traffic. While we agree that pedestrians are required to be reasonably prudent in seeing obstructions in their path, we do not feel that this relieves defendant from its duty in this case. The surface irregularity involved in this accident was located adjacent to an expansion joint in the roadway. The color of the roadway was light grey which had the effect of partially camaflouging the two to three inch deep defect in the road. Given the safety concerns of a pedestrian attempting to cross the highway at this location, we are of the opinion that the defect did create an unreasonable risk of harm.

As previously noted, the trial judge found plaintiff Alice Wesley to be ten (10) percent comparatively negligent for her injuries. LSA C.C. art. 2323, as amended by Acts 1979, No. 431, § 1, provides that in cases where contributory negligence is applicable, the injured party’s claim for damages shall be reduced in proportion to the percentage of negligence attributable to that party. This court in Pope v. City of Baton Rouge, 449 So.2d 1070 (La.App. 1st Cir.1984), has determined that contributory negligence is an available defense in a strict liability action. Therefore, in that this accident happened after the effective date of the amendment to LSA C.C. art. 2323, August 1,1980, we find comparative negligence applicable. We further find nothing manifestly erroneous in the trial court’s assigning ten (10) percent as the percentage of negligence attributable to plaintiff.

Finally, appellant maintains that the trial court erred in granting excessive general damages in the amount of $60,000.00. Doctor Kucharchuck, the orthopedic specialist who treated Mrs. Wesley, testified that he initially saw plaintiff for this injury on July 6, 1981, in the Dixon Memorial Hospital emergency room. Mrs. Wesley had what the doctor termed a locked knee, and he placed her in traction until July 10, 1982, at which time the knee unlocked. On July 30, 1981, an arthoscope procedure was performed wherein the torn portion of the meniscus cartilage was removed. In December of 1981, Mrs. Wesley began experiencing anterolateral instability caused by the stretching of the ligament. In January of 1982, it became necessary for the doctor to perform a Modified Ellison Procedure to tighten the ligament. Dr. Kucharchuck testified that by July of 1982, plaintiff had regained eighty-six (86) percent of her strength back in the leg.

There is no question from the doctor’s testimony that the torn cartilage was caused from a trauma such as a fall. During the arthoscope, Dr. Kucharchuck noted a significant amount of arthritic changes to the knee. It was his opinion that perhaps as much as half of this condition was caused by the trauma occasioned by the fall. Dr. Kucharchuck was of the opinion that plaintiff should encounter no serious problems with the knee until she reaches the age of fifty or sixty. He was of the further opinion that the procedures required to repair the knee will certainly contribute to plaintiff’s long term condition. Finally, the doctor noted that the possibility exists that Mrs. Wesley will have to have the four metal staples removed in the not too distant future.

As noted by the Louisiana Supreme Court in Wilson v. Magee, 367 So.2d 314, 315, (La.1979),

Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award.
(citations omitted)
In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point which is reasonably within the discretion afforded the trier of fact.
(citations omitted)

We are of the opinion that the trial judge did abuse his much discretion in the general damage award. A review of the jurisprudence leads this court to the conclusion that $30,000.00 is the highest amount which plaintiff could be awarded so as not to be an abuse of the trial court’s discretion. We therefore reduce the general damage award from $60,000.00 to $30,-000.00.

Therefore, the judgment of the trial court is affirmed as amended. Costs of this appeal in the amount of $858.60 are taxed to appellant.

AFFIRMED AS AMENDED.

LOTTINGER, J., dissents on the question of liability & concurs on the question of quantum.

ON APPLICATION FOR REHEARING

PER CURIAM:

In our original opinion, we affirmed the trial court’s finding of strict liability on the part of the State of Louisiana for the condition of Louisiana Highway 16 as it passes through the business district of Denham Springs. In addition, we affirmed the trial court’s finding that plaintiff was guilty of ten (10) per cent comparative negligence in causing her accident. However, on the issue of damages we reduced the trial court’s general damage award from $60,-000.00 to $30,000.00. In its application for a rehearing, the State has correctly pointed out that the judgment, as amended, is in need of clarification.

In its judgment,' the trial court awarded general damages in the amount of $60,000.00, special damages in the amount of $9,619.19 and reduced the total of these two figures by ten (10) percent. This calculation resulted in a total judgment of $62,657.27. Therefore, substituting the reduced general damage award of $30,000.00 for that of the original $60,000.00 award, adding this figure to the special damage award and reducing the total by ten (10) per cent results in an amended total judgment in the amount of $35,657.27. Costs of this appeal in the amount of $858.60 are taxed to appellant.

AFFIRMED AS AMENDED.

      . cf. Blanchard v. 12055 Airline Corp., 432 So.2d 328 (La.App. 1st Cir.1983)

        Creamer v. Empire Fire & Marine Ins. Co. 405 So.2d 651 (La.App. 1st Cir.1981), writ denied, 410 So.2d 764 (La. 1982)

        Garrison v. State, Through Dept, of Highways, 401 So.2d 528 (La.App. 2nd Cir.1981)

        Pierrotti v. Associated Indem. Corp., 399 So.2d 679 (La.App. 1st Cir.1981)


author: WARD, Judge. SCHOTT, Judge,

text:
    Wilton THOMAS v. AMOCO OIL COMPANY.
    No. CA-1539.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearings Denied Sept. 27, 1984.
    Writs Denied Nov. 16, 1984.

      William R. Pitts, Joe B. Norman, New Orleans, for defendant-appellant, Amoco Oil Co.
    Joseph F. Bishop, Jr., Mandeville, for plaintiff-appellee, Wilton Thomas.
    Before SCHOTT, LOBRANO and WARD, JJ.
   WARD, Judge.

Wilton Thomas sued Amoco Oil Company for breach of a contract for the lease of an Amoco service station in New Orleans. The Trial Judge held that Amoco breached the lease by converting the automobile repair and gasoline service station leased to Thomas into a self-service “pumper” station with no repair service bays. The Trial Judge rejected Amoco’s reconventional demand for reformation of the lease and held Amoco liable to Thomas for special damages of $75,524.00, exemplary damages of $50,000.00, and Thomas’ attorney’s fees of $25,000.00. Amoco has appealed, alleging that the Trial Judge erred in his findings of fact, application of the law and awarding of damages.

Wilton Thomas had been an authorized Amoco service station dealer since 1971. He leased from Amoco on a year-to-year basis a service station at 2025 Gentilly Boulevard where he sold Amoco gasoline, while deriving a substantial portion of his income from automotive maintenance and repair work which he performed in the two service bays of the station.

During the latter part of 1977, Amoco determined that it would be profitable and feasible to remodel Thomas’ station, converting it into a self-service gasoline pumping operation with a small snack, cigarette, and beverage store on the side. The physical layout of the proposed modifications required closing the repair service bays. Amoco representatives called on Thomas and explained Amoco’s plans, telling him that if he wanted to remain an Amoco dealer he would have to agree to the modification of the station. On March 13, 1978, Thomas signed a “dealer consent letter” authorizing Amoco to enter the leased premises and make the alterations converting it to a gasoline pumper station.

Soon after granting Amoco permission to convert the station, Thomas changed the gasoline pumps on one side of the station to self-service. Since the repair bays of the station were going to be closed, Thomas took a seven year lease on a garage on North Claiborne Avenue, hoping to continue his auto maintenance and repair business there as an “annex” to the Gentilly Boulevard station. However, business at the North Claiborne location failed to materialize.

On June 2, 1978, Thomas and Amoco representatives signed a “Lease Rider” reiterating Thomas’ permission for Amoco “to enter upon the demised premises for the purposes of accomplishing contemplated improvements” and providing that during the construction period rent payments could be reduced by the execution of a separate lease rider, and further providing for increased rent of $600.00 per month upon completion of improvements effective January 1, 1979.

On June 26, 1978, Thomas executed a renewal of his annual lease to run from June 30, 1978 through June 29, 1979. Except for the rent which was raised from $299.00 to $463.00 per month, the agreement contained terms identical to those of previous leases, including an equipment rider under which Amoco leased to Thomas the two service bays, including an automobile lift, an air compressor, a greasing assembly and other mechanical equipment. It is this 1978-79 lease which Thomas contends was breached by Amoco.

The station was remodeled during the final three months of 1978. Although Thomas did not resume operation of the business upon completion of the remodeling, he refused to sign a mutual lease cancellation agreement offered by Amoco. On January 30, 1979 Thomas filed this suit against Amoco, seeking damages for breach of lease.

In rendering judgment for Thomas, the Trial Judge found that Amoco acted in bad faith and violated the Service Station Dealers Day in Court Law, La.R.S. 51:1451-55, as well as the Petroleum Marketing Practices Act, 15 U.S.C. Sections 2801-2806. Although Thomas did not plead either statute, the Trial Judge, held that no technical forms of pleading are required in Louisiana and that the court could conform the pleadings to the facts. The Trial Judge then awarded Thomas exemplary damages because they are expressly permitted by the federal statute, although not allowed under Louisiana law.

In its appeal, Amoco makes 17 assignments of error which may be condensed into eight issues. It contends: 1) the Trial Judge erred in excluding from evidence certain documents executed by the parties and Thomas’ deposition taken by Amoco; 2) the Petroleum Marketing Practices Act (PMPA) and the Service Station Dealers Day in Court Law are inapplicable to this case; 3) alternatively, even if the PMPA has been violated, its provisions bar the cause of action under state law; 4) Amoco is not liable for exemplary damages and attorney’s fees, although they may be authorized by the PMPA; 5) the lease was not breached because it authorized modification of the station without the lessee’s consent; 6) Thomas expressly consented to the modification and is therefore estopped from claiming breach of the lease; 7) Thomas is not entitled to damages attributable to the time period beyond the primary term of the lease; and 8) Thomas is not entitled to special damages which were not pleaded or proven.

Before considering other issues, we reverse the Trial Judge’s rulings excluding evidence, because we believe he erred when he refused to consider the deposition of Thomas and the lease rider signed by him. We, therefore, have considered in this appeal as admissible evidence the following documents which were proffered by Amoco:

The deposition of the plaintiff, Wilton Thomas, was admissible as the deposition of a party, pursuant to La.C.C.P. art. 1450(2).

The June 2, 1978 Lease Rider was admissible as relevant to the interpretation of other agreements between the parties. La.C.C. art. 1949.

Amoco also proffered a document entitled Application for Rent Adjustment, dated December 5, 1978, which purports to be Thomas’ exercise of rights under the June 2, 1978 Lease Rider. The Trial Judge excluded the Application for Rent Adjustment from evidence, finding by his own comparison of handwriting that Thomas’ signature on it likely was a forgery. This document has little relevance and hence, we make no determination concerning its admissibility.

Also, before considering whether Amoco breached the terms of the lease agreement, we reverse the Trial Judge’s finding that the Petroleum Marketing Practices Act and the Service Station Dealers Day in Court Law are applicable in this case. These statutes apply only to a refiner/franchisor who cancels, terminates, or who refuses to renew a franchise agreement, while Amoco neither cancelled, terminated, nor refused to renew the lease agreement with Thomas. On the contrary, Amoco renewed the lease for 1978-79 and it was willing to have Thomas continue as lessee in the operation of the remodeled station. After the lease was renewed, Amoco offered a mutual cancellation agreement, an exception under the PMPA, only because Thomas was unwilling to continue operation of the station. Apparently Thomas did not think Amoco had cancelled, terminated, or refused to renew the lease because he did not cite either statute in his petition, but rather sued on the lease agreement. Under these circumstances, we. hold neither the PMPA nor the Service Station Dealers Day in Court Law has been violated. Having found neither statute applicable, we hold Thomas not entitled to either exemplary damages or attorney’s fees provided by those statutes.

Amoco next contends that the lease was not breached because the lease authorized modification of the station without the lessee’s consent and that this right is given to Amoco by Paragraph 9(g) of the lease:

Lessor reserves the right to modify, rebuild or rehabilitate the premises at any time during the term of this lease; Lessor will give Lessee sixty (60) days notice of its intent to do so. Upon completion of the modification, rebuild or rehabilitation of the premises, the rental rate shall be adjusted to conform to the Lessor’s prevailing rate in effect for the particular size and type of facility in the market.

Thomas contends that Paragraph 14 controls:

None of the provisions of this lease shall be construed as reserving to Lessor any right to exercise any control over the business or operations of Lessee conducted upon the leased premises or to direct the manner in which any such business or operations shall be conducted, it being understood and agreed that so long as Lessee shall use said premises in a lawful manner as herein provided, the entire control and direction of such activities shall be and remain with Lessee.

Following Civil Code Article 1955 and reading these paragraphs in pari materia, giving to each the sense that results from the entire lease, we find Amoco’s right to “modify, rebuild or rehabilitate the premises” limited by the lessee’s right to control and direct the manner of conduct of the “business or operations.” If Paragraph 9(g) gives Amoco the unfettered right to modify the premises, the very nature of Thomas’ business may be changed, and the right of operation given by Paragraph 14 is meaningless. Consequently, we believe Paragraph 9(g) must be read to give Amoco the right to modify the premises, but only if modification does not substantially change the nature of the operation of the business during the existence of the lease. In the instant case, we hold that the right to modify or rebuild the premises granted Amoco in Paragraph 9(g) did not authorize conversion of an automobile repair and full-service gasoline station into a self-serve pumper station, beverage and snack store. Amoco breached the terms of the lease.

Amoco argues that even if the lease was breached, Thomas is estopped from seeking damages since he expressly consented to the rebuilding and conversion of the station by executing the Dealer Consent Letter and the June 2, 1978 Lease Rider.

To reiterate the chronology of agreements between the parties: on March 13, 1978 Thomas signed the Dealer Consent Letter; on June 2, 1978, Thomas and Amoco both approved the Lease Rider; on June 26, 1978, the 1978-79 lease was signed by Thomas and Amoco; and in October through December 1978 Amoco entered the premises and remodeled the station.

The 1978-79 lease made no reference to the Dealer Consent Letter or the June second Lease Rider which were executed during the term of the prior lease. Paragraph 17 of the 1978-79 lease states: “No obligation, agreement or understanding shall be implied from any of the terms and provisions of this lease, all obligations, agreements and understandings with respect to the leased premises being expressly set forth herein.” Additionally, the 1978-79 lease says in paragraph 6, the “premises shall be devoted solely to the operation thereon of a gasoline service station and the handling, storage and dispensing thereon and therefrom of motor fuels, motor oils and grease and other petroleum products and such other products and services (including vehicle towing) as are customarily handled, sold and distributed at a gasoline service station.” The lease did not say that operations were limited to a self-service station and snack store, nor did it authorize the sale of products not associated with a service station, such as beverages, snacks or cigarettes. Moreover, in a rider attached to the lease, Thomas again leased from Amoco the two service bays and the equipment that had been used in the automobile repair service operations.

Thomas testified that at the time the new lease was executed, he noted that it was virtually identical to the old 1977-78 lease and that the Amoco agent told him that “it looked like everything may be okay”. Thomas says he believed the new lease gave him at least one more year of operation as a full service station with two bays for automobile repairs.

We believe Amoco is bound by the terms of the 1978-79 lease agreement, and that it cannot now say that because Thomas agreed to modifications under the 1977-78 lease agreement that Thomas also agreed to modifications under the 1978-79 lease.

Consequently, we hold that Amoco breached the June 26, 1978 lease and Wilton Thomas is not estopped from seeking damages.

The general rule is that a lessee may recover damages for the value, at the time of the breach, of the unexpired term of the lease, less the agreed-upon rent, and for special damages that result from the breach. La.C.C. art. 2696; 52 C.J.S. Landlord and Tenant, § 461(4).

The Trial Judge awarded damages for the following items:

Loss of leasehold interest $ 27,780.00
Reimbursement for loss of equipment 6,259.00
Loss of good will 7,000.00
Reimbursement for loss of inventory 2,785.00
Reimbursement of insurance premium 1,700.00
Loss of future income 30,000.00
Total Special Damages: $ 75,524.00
Exemplary Damages 50,000,00
TOTAL SPECIAL & EXEMPLARY DAMAGES: $125,524.00
Attorneys fees 25,000.00
TOTAL $150,524.00

We do not believe Thomas is entitled to all damages awarded. We agree with Amoco’s contention that there is no basis for an award of amounts attributable to any period beyond the primary term of the lease agreement, that is, beyond June 29, 1979. Hinrichs v. Tulane Education Fund, 49 La.Ann. 1029, 22 So. 96 (1897).

Thomas claimed lost income for three periods: from October 1978 to January 1979, the date of filing the lawsuit; future loss of income to June 1979, the date of expiration of the lease; and estimated future loss of income. However, damages should be awarded only for the period commencing October 1, 1978, when Amoco breached the lease, until the lease would have expired on June 29, 1979. Thomas proved he realized a net profit from the service station of $8,848.00 for the nine months during 1978 in which he operated the station. Hence, we find an award of $8,848.00 reasonable compensation for loss of income during the nine months from October 1, 1978 through June 29, 1979.

We also find that the Trial Judge erred in granting Thomas damages to reimburse the $1,700.00 insurance premium he paid for coverage of the leased premises, because the insurance premium was an operating expense deducted from gross profits to calculate net income. Consequently, we cannot award damages for loss of income while also reimbursing Thomas for insurance premiums which he would have had to pay in order to earn those profits.

For the same reason, we find reimbursement for loss of inventory inconsistent with an award for loss of income. The cost of goods in inventory must be subtracted from gross receipts to calculate net profit or income. Hence, Thomas cannot be reimbursed for the inventory he had to acquire to earn profits since he has been given damages for loss of income.

We also reverse the award of $27,780.00 for the loss of the leasehold interest. The value of a leasehold interest is measured by the difference between the rent which would have been paid by the lessee and the fair rental value of the property. The fair rental value of leased property is usually determined by proof of the amount of rent the lessor receives from the party who leases the premises after the breach, although it may be proved by expert testimony or evidence of rental values of comparable property. See Major v. Hall, 286 So.2d 486 (La.App. 1st Cir.1973) writ denied 288 So.2d 647 (La.1974). Thomas failed to offer proof that the lease had any value above what he would have been obligated to pay in rent to Amoco. Hence, no damages can be awarded for loss of the leasehold interest.

We further hold that the Trial Judge erred in awarding damages for loss of good will caused by the breach since Thomas neither pleaded nor proved such a loss. The good will of a business is an intangible asset, the loss of which must be specifically alleged by a plaintiff as an item of special damages before there may be proof and recovery upon the loss. La.C.C.P. art. 861. See Major v. Hall, 286 So.2d 486. None of the pleadings filed by Thomas alleged loss of good will, and he did not attempt to introduce evidence of its value. Hence, we find no basis for damages for loss of it and reverse the $7,000.00 awarded for loss of good will.

We also find error in the award of $6,259.00 compensating Thomas for loss of equipment he had used in the Amoco station. The equipment was not lost. Rather, Thomas testified that some of the equipment was stored at his house and some had been taken to his'new business location on North Claiborne. Hence, there is no com-pensable loss.

As noted previously, the awards of exemplary damages and attorney’s fees must be reversed since they were based upon provisions of the Petroleum Marketing Practices Act and the Louisiana Service Station Dealers Day in Court Law, which we hold inapplicable in this case.

For the reasons stated, the judgment of the Trial Court is amended to reduce the amount of the award to $8,848.00, and as amended, the judgment is affirmed. Since it breached the lease, costs of the appeal are to be paid by Amoco.

AMENDED AND AFFIRMED.

SCHOTT, Judge,

concurring in the denial of plaintiff-appellee’s application for rehearing:

Nowhere in his pleadings did plaintiff invoke the provisions of The Petroleum Marketing Practices Act, 15 U.S.C.A. § 2801 et seq. Had he done so defendant would have been afforded an adequate and fair opportunity to defend against the charge and could have removed the case to the federal court. Plaintiff designed his suit as one arising under state contract law and not under the federal statute. See Warner Bros. Records, Inc. v. R.A. Ridges Distributing Co., Inc., 475 F.2d 262 (10th Cir.1973). Under such circumstances the trial court could not grant plaintiff relief under the federal act.


author: REDMANN, Chief Judge.

text:
    Beverly W. McCOY v. Mitchell McCOY.
    No. CA 1321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 14, 1984.
    Beverly McCoy in pro. per.
    Ford T. Hardy, Jr., New Orleans, for defendant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   REDMANN, Chief Judge.

A rule to show cause issued on defendant father’s “motion to set aside judgment” for child support, on the ground it was obtained by ill practice. The mother argued, in her trial court memorandum in opposition filed the day following the hearing on the rule, that the motion’s claim of nullity was not presentable by summary procedure. The trial judge denied the motion. We reverse.

There is no transcript of the hearing on the rule, but apparently the hearing was limited to argument, and the allegations of ill practice were not tried. Apparently the trial judge declined to entertain the claim of nullity of judgment because presented not by petition but by rule. That was error. “All objections which may be raised through the dilatory exception are waived unless pleaded therein,” La.C.C.P. 926 (including unauthorized use of summary proceeding, 926(3)). “Exceptions to a ... rule to show cause ... shall be filed prior to the time assigned for, and shall be disposed of on, the trial,” C.C.P. 2593. The mother did not file the dilatory exception at any time. If one could argue that her trial court memorandum might be considered as if an exception, it was not filed prior to the time assigned for trial. The action of nullity — especially in view of its allegation that the mother’s lawyer advised the father's lawyer that the support rule was being continued, yet took the father into court unrepresented to consent to a judgment— should therefore have been tried notwithstanding that it was presented by rule rather than by petition.

Reversed; remanded.

      . We do not construe the trial judge’s denial as if the interposing and maintaining of an exception of no cause of action. The motion’s allegations state a cause of action for nullity. The trial judge knew, at the trial of the support rule, that the father testified that he had fired his lawyer. But opposing counsel then knew, according to the allegations, and did not reveal to the trial judge, that the father had not fired his lawyer before coming to court for the trial of the support rule, and that the father’s lawyer’s absence from court was due to opposing counsel’s having advised him that the support rule would be tried not that day but five days later (to accommodate the father’s lawyer, who was that day trying another case in another division of the same district court). We do not suggest that the lawyer has any right that requires annulling the decree to which the uncounseled client consented. It is the client’s right to his lawyer's counsel that demands that a judgment under the circumstances alleged be annulled for ill practice. Courts cannot suffer opposing counsel to separate a client from his lawyer by advising the lawyer the case is continued and then to somehow accomplish the immediate firing of the lawyer by the uncounseled client and an immediate uncounsclcd consent judgment.


author: L. JULIAN SAMUEL, Judge Pro Tem.

text:
    Luis ORTIZ and Alma Ortiz v. Frances J. DEMAREST, Jr., Recorder of Mortgages For the Parish of Orleans, State of Louisiana.
    No. C-2707.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 22, 1984.
    Writ Denied, Stay Recalled Sept. 19, 1984.

      Darleen M. Jacobs, New Orleans, for respondents-defendants.
    Mack E. Barham, Mary Anna Robinson, Robert E. Arceneaux, New Orleans, for relator-plaintiff.
    Before GARRISON and BYRNES, JJ., and L. JULIAN SAMUEL, J. Pro Tern.
   L. JULIAN SAMUEL, Judge Pro Tem.

Eugene Barriffe, Jr., and Errol Ware filed suit against Luis and Alma Ortiz for damages for invasion of privacy, trespass and negligence. On May 15, 1984, following trial of that matter, there was judgment in favor of the plaintiffs and against the defendants in the amount of $250,-000.00 each. Defendants then filed timely motions for a new trial, for judgment notwithstanding the verdict and for remittitur, which motions were denied by the trial court on June 22, 1984.

Defendants then applied to this court for writs from the trial court’s denial of their motions. On July 9, 1984, we granted a peremptory writ, vacated the June 22,1984, judgment and remanded the case for a new hearing on defendants’ motions for a new trial, judgment notwithstanding the verdict and remittitur. As of this date, the new hearing has not been held.

Notwithstanding the above, the plaintiffs had the judgment awarding them $250,-000.00 against each of the defendants recorded and inscribed in the mortgage records for the Parish of Orleans on May 15, 1984, the same day that judgment was rendered.

On July 23, 1984, Luis and Alma Ortiz filed this mandamus suit against the Recorder of Mortgages for the Parish of Orleans seeking cancellation and erasure of the May 15, 1984 judgment from the mortgage records. Barriffe and Ware intervened. Following trial, the trial judge refused to make the writ of mandamus peremptory. Luis and Alma Ortiz have filed this application for writs from that judgment and Barriffe and Ware have responded.

Intervenors first contend that relators are entitled to have the inscription of the judgment removed from the mortgage records “only if and when they have filed a suspensive appeal.” We do not agree.

We deal here with both statutory and jurisprudential law. A judgment creditor must await the lapse of the suspensive appeal delay before he may execute his judgment. Code of Civil Procedure Art. 2252 provides:

“A judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed.”

Our settled jurisprudence is that the rec-ordation of a judgment in the mortgage records is a step in the execution of the judgment. State ex rel. Macheca v. Dunn, 148 La. 460, 87 So. 236 (1921); Dupuy v. Demurest, 342 So.2d 263 (La.App. 4th Cir.), writ denied, 344 So.2d 3 (La.1977); D’Arbonne Sewerage, Inc. v. Sanders, 255 So.2d 855 (La.App.2d Cir.1971); Treigle v. Patrick, 131 So.2d 850 (La.App. 4th Cir.1961).

Accordingly, under the plain wording of Code of Civil Procedure Art. 2252, the judgment creditors cannot “proceed with the execution” of their judgment until “after the delay for a suspensive appeal therefrom has elapsed;” and in this case the delay for taking a suspensive appeal has not yet even begun to run because the trial judge has not acted on relator’s timely motion for a new trial. Code of Civil Procedure Article 2123(2) and (3) state:

Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.

Finally, intervenors argue that the judgment complained of is appealable and, as no showing of irreparable harm has been made, supervisory relief is improper. Again we disagree.

Appeal, with its usual delays, does not afford relators an adequate remedy. Indeed, to require relators to proceed from the mandamus judgment only by appeal would effectively make meaningless the provisions of Code of Civil Procedure Art. 2252.

For the reasons assigned, the judgment complained of is reversed, the writ of mandamus is made peremptory, and Frances J. Demarest, Jr., Recorder of Mortgages for the Parish of Orleans, State of Louisiana is ordered and directed to cancel and erase from the records of his office that certain inscription and recordation of the judgment in the matter entitled “Eugene Barriffe, Jr. and Errol Ware v. Luis Ortiz and Alma Ortiz,” No. 82-19655 of the docket of the Civil District Court for the Parish of Orleans, State of Louisiana, which judgment is recorded in his records at M.O.B. 2454, Folio 227. Respondents are to pay all costs of these mandamus proceedings.

REVERSED.

      . Proceedings entitled "Eugene Barriffe, Jr. and Errol Ware”, No. 82-19655 of the docket of the Civil District Court for the Parish of Orleans.