author: COLE, Judge. LANIER, Judge,

text:
    Varel Lee WASSON v. Robert D. WASSON.
    No. 83 CA 0016.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Concurring Opinion Oct. 18, 1983.
    Writ Denied Dec. 16, 1983.
    Kenneth L. Riche, Baton Rouge, for plaintiff.
    James E. Durbin, Denham Springs, for defendant.
    Before COVINGTON, LOTTINGER, EDWARDS, PONDER, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   COLE, Judge.

The monetary effect of a child support (alimony) award, later modified upon appellate review, is the issue in this case. Its resolution deterines whether or not the parent adversely affected is obligated for the differential amount during the interim between the trial court award and final appellate determination. '

Varel Lee Wasson and Robert D. Wasson were legally divorced by a judgment of the 21st Judicial District Court, Parish of Livingston, rendered on August 26, 1980. The judgment ordered defendant Robert Was-son to pay $400 a month child support, which was a reduction from the $600 a month plus medical expenses set previously by The Family Court for the Parish of East Baton Rouge, the court which granted the separation. Plaintiff Varel Lee Wasson appealed suspensively from the total judgment, contesting jurisdiction, venue and the reduction in child support. (We note although she appealed suspensively from the entire judgment, the child support matter is subject only to a devolutive appeal. See La.Code Civ.P. art. 3943). On June 29, 1981, this court amended the trial court’s judgment as to the reduction in child support and reinstated the original sum of $600 per month plus medical expenses. Wasson v. Wasson, 402 So.2d 718 (La.App. 1st Cir.1981).

Thereafter, Mrs. Wasson filed a “Petition to Have Past Due Support Accumulated and Rule For Contempt,” wherein she alleged Mr. Wasson was indebted to her for the $200 a month difference which had accumulated during the ten month period between the trial court judgment and the appellate decision. (Mr. Wasson had paid $400 a month from August 26, 1980 until June 29, 1981.) Without assigning reasons the trial court rendered judgment against the petitioner and dismissed the rule. Mrs. Wasson then filed this appeal.

The issue we face here is one that has plagued the courts many times before. Appellant cites O’Brien v. O’Brien, 347 So.2d 1288 (La.App. 1st Cir.1977), as supporting her argument that she is entitled to the arrearages. In O’Brien, the trial court initially awarded the wife $500 a month alimony. It later reduced the amount to $275 a month and the wife appealed the reduction. This circuit reversed the reduction and reinstated the original amount. When that judgment became final and definitive the husband apparently resumed paying $500 a month. The wife filed a rule in the trial court, seeking the $225 a month difference which had accrued during the period between the trial court’s judgment and the end of the appellate procedure. The husband was ordered to pay the accumulated amount and he appealed to this court.

On appeal, we noted the effect of a general and unqualified reversal of a judgment was to nullify it completely and leave the case standing as if such judgment had never been rendered, citing 5B C.J.S., Appeal and Error, § 1950. Therefore, we gave the previous appellate coprt decision retroactive effect to the date of the trial court judgment and held the husband in fact owed the $225 a month difference which had accumulated during the appellate process. This accords with long established principles of procedural law.

At the time of the O’Brien decision this court did not discuss the significant Supreme Court case of Frederic v. Frederic, 302 So.2d 903 (La.1974), rehearing denied 1974. In a case with a phenomenally complicated procedural history, the husband was ordered to pay alimony by the trial court. He appealed to the Fourth Circuit, the court reversed the alimony award, and the wife sought writs. Acting pursuant to the appellate court’s reversal, the husband ceased paying alimony as of February 6, 1974, the date of the appellate decision. Meanwhile, another panel of the Fourth Circuit considered the alimony issue as a part of a separate appeal and affirmed the trial court’s granting of alimony.

Before the matter was decided by the Supreme Court, the wife filed a rule in the trial court, claiming the husband owed her for past-due alimony. The trial court agreed, ordering him to pay the alimony which had accumulated since he had ceased payments. The husband successfully sought a stay of execution of this order from the Supreme Court.

Thus the Frederic court was faced with three related writs. The first two writs arose from the two differing opinion's of the Fourth Circuit as to whether or not the wife was entitled to alimony. The Supreme Court concluded the wife was not entitled to alimony. The third writ dealt with the trial court’s order that the husband pay the alimony that had accumulated after the court of appeal decisipn which stated he need not pay. The Supreme Court concluded it had erred in staying the execution of that trial court judgment. The court explained as follows on page 908:

“Inasmuch as an appeal from a judgment awarding alimony does not suspend the execution of the judgment, La.Code Civ.P. Art. 3943, the husband was not authorized to discontinue alimony payments upon the strength of the Court of Appeal judgment of February 6, 1974 revoking alimony payments. The effect of the Court of Appeal judgment was itself suspended when this Court granted writs to review its correctness. The effective date of the revocation of the alimony due by the husband to the wife is the date the judgment of this Court in these consolidated matters becomes final. Therefore, our order staying execution of the judgment of the trial judge of June 28, 1974 cumulating past due alimony is recalled and set aside.” (Emphasis added.)

Justice Tate, in a partial concurrence and partial dissent, raised the following question:

“However, I am not certain, from the majority opinion, whether the majority intends to affirm an award of alimony to the wife up to date of finality of this decree, or instead to decree that no alimony is due effective as to the date of the original divorce decree. If the latter is the intent, then of course the holding described in the first paragraph is meaningless, because the wife collects nothing. I assume the former is the majority’s intent.” 302 So.2d, at 908.

On an application for rehearing, the mover (Mr. Frederic) raised a question as to the effective date of the revocation of the alimony. In a per curiam decision, at page 909, the court stated as follows:

“As noted in the majority opinion, an appeal from a judgment awarding alimony is devolutive only. See LSA-C.C.P. Art. 3943. Hence, the effective date of the termination of alimony is the date that the judgment of this Court becomes final." (Emphasis added.)

We find a prima facie conflict in O’Brien and Frederic. In both cases the higher court ultimately modified the judgment of the trial court. In Frederic, the final result was to reverse the trial court’s granting of alimony altogether, while in O’Brien, the appellate court raised the amount granted by the trial court. Both cases involve the question of what amount is owed in the interim between the trial court’s judgment and the date when that judgment (modified by the higher court) becomes definitive, i.e., when all appellate delays have lapsed.

In Frederic, the spouse ordered to pay alimony by the trial court was told by the Supreme Court he was wrong to have ceased paying during the interim. Although the ultimate conclusion of the Supreme Court was that the wife was not entitled to alimony, this decision did not take effect until the Supreme Court’s judgment became definitive. Apparently, the wife’s right to receive the alimony in the interim was not affected by the Supreme Court’s ultimate decision.

To the contrary, in the O’Brien case, although the paying spouse was also expected to follow the trial court order until the judgment became definitive, once the appellate court reversed the trial court judgment, and all delays had run, the effect of the appellate court’s reversal was to date back to the time of the original trial court judgment. Once the appellate court determined the trial court erred in not awarding the higher amount of alimony it was as though the trial court had ordered the husband to pay the higher amount from the beginning.

Applying Frederic to the facts of the present case, the wife would not be entitled to the $200 a month difference which accumulated between the trial court judgment a,nd the date of the court of appeal judgment, because the court of appeal judgment (increasing the alimony) would have been effective only when that judgment became definitive. Applying O’Brien to these facts, the wife would be entitled to the $200 a month because once the appellate court raised the alimony, and all delays had run, the appellate court judgment had the effect of nullifying the original trial court judgment. This is so because once the appellate court said the trial should have awarded $600 a month it is as though the trial court in fact ordered the husband to pay $600 from the beginning.

In the recent case of Oliver v. Oliver, 417 So.2d 1278, (La.App. 1st Cir.1982), writ denied, 421 So.2d 1124, this court reasoned Frederic had not been followed by the O’Brien court. In Oliver, the trial court denied the wife alimony and the appellate court reversed, granting it in the amount of $876 a month. The husband sought writs to the Supreme Court, which were ultimately denied. Meanwhile, the wife filed a rule in the trial court seeking past-due alimony from the date of the trial court’s judgment. The trial court reduced the amount of alimony (in response to a rule filed by the husband) but granted the arrearages accordingly. The husband appealed the arrearages matter to this court.

In Oliver, the court discussed O’Brien and indicated a desire to follow it, but held as an appellate court it was compelled to follow the Supreme Court decision in Frederic.

The Oliver court noted Frederic held when a court grants alimony (child support), article 3943 of the Code of Civil Procedure, in stating there are no suspensive appeals in such cases, creates a right in favor of the successful litigant which is irrevocable and unmodifiable during the appellate process. And although the article speaks only in terms of there being no suspensive appeals in cases involving a judgment awarding alimony, an earlier case, Malone v. Malone, 282 So.2d 119 (La.1973) held a suspensive appeal cannot be taken from a judgment relating to alimony, regardless of whether the judgment grants, denies, reduces, increases or terminates the alimony. The Oliver court then concluded at page 1283:

“We must then reason from the Frederic postulate that Article 3943 also creates an irrevocable and unmodifiable right in favor of a successful trial court litigant during the appellate process when a trial court denies, reduces, increases or terminates alimony. What is sauce for the litigious goose must also be sauce for the litigious gander.”

The court therefore set the effective date for the commencement of Mrs. Oliver’s alimony as the date the judgment became definitive, which was the date writs were denied by the Supreme Court. See La.Code Civ.P. arts. 1842 and 2166, paragraph 4.

Although the interpretation of Frederic by this court in Oliver is a sound one based upon the literal language used by the majority in Frederic, we deem it most significant that our Supreme Court in Frederic did not have before it the same question posed by O'Brien and Oliver. In the latter eases the issue presented was the ultimate right of the wife, following definitive appellate review, to recover arrearages accumulating from the date of the trial court judgment, thus validating her successful appeal. However, in Frederic the court was concerned with the right of the wife to receive alimony in the interim between trial court judgment awarding it and final appellate determination of her entitlement vel non. The court did not have before it nor did it address specifically the right of the husband to recover the amount he paid his wife pursuant to the erroneous trial court decree.

Our prior opinions in O’Brien and Oliver conflict. The Second Circuit and the Third Circuit have applied Frederic as we did in Oliver. See, Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979) and Macip v. Wallace, 381 So.2d 869 (La.App. 3d Cir.1980), on partial rehearing. It was said in Oliver: “We believe Frederic and Bruner to be in error.” 417 So.2d, at 1283, 84. We still believe Frederic to be in error if it stands for the proposition the successful litigant is without right to be paid or to be reimbursed differential sums resulting from appellate review. To so hold renders the appeal meaningless and results in the appellate court acting as a second trial court. Just because the appeal is devolutive and not suspensive does not alter the purpose of appellate review which is to correct an erroneous and thus unjust trial court disposition of the matter.

In view of the fact our Supreme Court in Frederic did not have this precise issue before it and the majority, as then constituted, did not deal explicitly with the right of the litigant who is successful in the appellate court to benefit by a “retroactive” application of that court’s decision, (the rationale of the fact situation now before us), we decline to again apply its language within this factual context. This assumes, of course, we have understood correctly the import of the language used and have not misconstrued the intent of the court. We do find the Frederic language above quoted to be somewhat ambiguous when examined solely within the context of the facts of that case. It could well have a meaning different from that attributed to it by the circuit courts. The language employed almost begs the question with which we are concerned. In the very least, there appears to be a semantical problem.

Accordingly, we adhere to our opinion in O’Brien and overrule Oliver.

We are cognizant this result, in some instances, will work a hardship on the receiving spouse, especially in cases involving child support. It is not our function, however, to enact remedial legislation under the guise of judicial interpretation. No special niche has been carved out of appellate procedure applicable only to alimony and child support awards. Until the law is changed by the legislature we must continue to give effect to the appeal of such awards as we would the appeal of any other monetary obligation.

For these reasons the judgment of the trial court is reversed and judgment is now rendered in favor of appellant, Varel Lee Wasson, and against appellee, Robert D. Wasson, for the sum of $2,100, plus legal interest on each increment thereof from its due date, until paid.

Judgment is further rendered in favor of appellant, Varel Lee Wasson, and against appellee, Robert D. Wasson, for the additional sum of $1,000 representing attorney fees for services rendered at both the trial and appellate levels.

Appellee, Robert D. Wasson, is cast for all costs of court.

REVERSED AND RENDERED.

LANIER, J., concurs and will assign reasons.

CRAIN, SHORTESS and EDWARDS, JJ., dissent.

LANIER, Judge,

concurring.

I concur in the result. As the author of Oliver v. Oliver, 417 So.2d 1278 (La.App. 1st Cir.1982), I followed Frederic v. Frederic, 302 So.2d 903 (La.1974), even though I did not agree with its holding because it was the latest expression of the Louisiana Supreme court. The writ action taken by the Louisiana Supreme Court in Oliver v. Oliver, 421 So.2d 1124 (La.1982) indicates that a majority of the present court may either disagree with Frederic or find it not controlling in this factual situation.

The purpose of an appeal is to have “a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La.C.C.P. art, 2082. An appellate court is authorized to “render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis added). La.C.C.P. art. 2164. The authority of an appellate court to affect a trial court judgment and render a judgment that is just is not determined by the type of appeal taken (suspensive or devolutive). The suspensive appeal merely “suspends the effect or the execution of an appealable order or judgment.” (Emphasis added). La.C.C.P. art. 2123. The devolutive appeal, such as that provided for custody and alimony judgments in La.C.C.P. art. 3943, does not. La.C.C.P. art. 2087. An award of alimony or child support is a money judgment. The language contained in Article 3943 does not make the devolutive appeal of an alimony or child support award different from a devolutive appeal of any other type of money judgment. There is nothing in the law or jurisprudence requiring that when a trial court judgment is reversed on a devolutive appeal that the effect of the appellate court judgment is only prospective. Where a money judgment is executed while a devol-utive appeal is pending and is subsequently reversed by an appellate court, the judgment creditor is liable to place the judgment debtor back in the same position in which he was jjrior to the appeal, unless the rights of third persons are affected. Cf. Guaranty Savings Assurance Company v. National American Bank of New Orleans, 407 So.2d 795 (La.App. 4th Cir.1981), writ denied 410 So.2d 1135 (La.1982); Lisi Realty, Inc. v. Plaisance, 306 So.2d 920 (La.App. 1st Cir.1974), writ denied 310 So.2d 640 (La.1975). Conversely, when a party seeking a money judgment loses in the trial court but, after taking a devolutive appeal, wins in an appellate court, the appellate court judgment will grant the relief initially sought, rather than only prospective relief. See, for example, Murphy v. Messenger, 258 La. 31, 245 So.2d 345 (1971); Glover v. Southern Pipe & Supply Company, 408 So.2d 352 (La.App. 4th Cir.1981), writ denied 412 So.2d 86 (La.1982).

The holding of Frederic precludes the retroactive correction of an erroneous trial court judgment granting, denying or modifying an alimony or child support award and irrevocably perpetuates the injustice of such judgment during the appellate process. I agree with the majority that we should not follow Frederic. I concur in the holding reversing the judgment of the trial court and reinstating the original sum awarded for child support, which has the effect of placing the parties in the same position, with respect to child support, as if no reduction had ever been decreed.

      . La.Code Civ.P. art. 3943 reads as follows:
      “An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

      . See O’Brien v. O’Brien, 308 So.2d 333 (La.App. 1st Cir.1975), writ refused, 311 So.2d 262 (La.1975).

      . See Frederic v. Frederic, 290 So.2d 469 (La.App. 4th Cir.1974). This appeal arose from a rule filed by the husband to have alimony discontinued.

      . See Frederic v. Frederic, 295 So.2d 52 (La.App. 4th Cir.1974). This was a direct appeal from the trial court judgment awarding the wife alimony.

      . See Oliver v. Oliver, 393 So.2d 192 (La.App. 1st Cir.1980).

      . See Oliver v. Oliver, 397 So.2d 1358 (La.1981).

      . The majority of our Supreme Court, as now constituted, appears to agree Frederic is not controlling as regards the precise issue before us. Note treatment of writ denial in Oliver, 421 So.2d 1124.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Harriet Sipple SMITH and G. Rogers Smith v. Clyde BAHAM, d/b/a Clyde Baham Building Contractor.
    No. 83 CA 0025.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      William H. Farris, Covington, for plaintiffs.
    Clint L. Pierson, Margaret H. Kern, Cov-ington, for defendant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

This case involves an oral contract to build a house. A major issue presented herein is whether the contract was a “flat-fee contract” or a “cost-plus contract.” Other issues involved are the reliability of various records, the accuracy of the figures used by the trial court in rendering judgment and the appropriateness of an award for certain remedial work and for future repairs.

Plaintiffs, Harriet Sipple Smith and her husband, G. Rogers Smith, contacted a local building contractor, defendant Clyde Ba-ham, concerning the construction of a large residence. The parties met sometime in December of 1977 and the Smiths informed Baham they wanted a house similar to the “Rathe house,” a residence Baham had constructed recently. The Smiths both testified Mr. Baham estimated he could build the house for approximately $25 a square foot. The Smiths stated further that at a second meeting a few weeks later, they presented Mr. Baham with preliminary plans and he told them he would build the house for a flat fee of $255,000. No written contract was executed.

To the contrary, Mr. Baham testified he never quoted a flat fee but instead informed the Smiths he would do the job on a “cost-plus” basis. He explained his usual method was to bill the owner for the labor, plus a 25% charge for insurance, overhead and taxes. To this figure he added the cost of material and then added a 15% charge on the entire amount for his profit.

In any event, the parties agreed Mr. Ba-ham would build the house and certain preparations began in March of 1978. Mr. Baham received the full set of plans sometime in May of 1978. The Smiths stated Baham assured them the house would be completed by December of that year.

Mrs. Smith testified there was no discussion as to how payments would be made. She described herself as “incredibly naive” and simply paid Mr. Baham at various intervals, in whatever amount he requested. It was not until well into the job she began asking him for invoices or records of where the money was going. She stated he gave her some invoices but they bore no relation to the amount she was paying him nor were the dates on the invoices coincidental with the dates of her payments.

As December of 1978 approached it became apparent the house was not near completion. Mrs. Smith testified there were many days when no workers showed up at the job site, in spite of her repeated pleas to Mr. Baham to proceed with the work. During the course of the project the Smiths made certain purchases directly from suppliers, buying lumber and an air conditioning system. They both testified they assumed they would be given a credit for these against the $255,000 flat fee.

Sometime in December of 1978 negotiations broke down between the parties, with the Smiths refusing to pay Baham and Ba-ham refusing to do any more work without being paid. In January of 1979, because they had to vacate their old house, the Smiths moved into the new house although it was not completed. In March the parties met in an attempt to reconcile their differences but to no avail.

The Smiths filed suit alleging Baham had failed to complete the contract and had caused them to spend more than the agreed upon price of $257,000. Baham answered and filed a reconventional demand, alleging plaintiffs owed him $31,000 for material and labor.

After a protracted trial involving lengthy testimony and innumerable exhibits, the court found the contract had been a cost-plus contract and found “in most instances the plaintiff got full value for their expenditures on the house.” It concluded plaintiffs owed Baham $30,937 on the contract. It concluded further that because of Ba-ham’s defective workmanship the Smiths had to spend approximately $22,113.20 for repairs and would have to spend $24,445.96 for future repairs, a total of $46,559.16. The difference in the two awards and the amount finally awarded to the Smiths was $15,622.16. The Smiths, and then Baham, filed an appeal.

We note at the outset the task of the trial court, and indeed, this court also, is almost an impossible one. It is virtually inconceivable the parties would have entered into a contract of this magnitude without a written agreement as to the rights and obligations between them. It is almost equally unbelievable the Smiths allowed the project to proceed for several months without asking for any verification as to where their money was being spent. The evidence submitted consisted of hundreds of cancelled checks, time sheets, invoices, etc. The parties operated on a “trust” basis through most of the construction with little or no documentation of the disbursement of funds. Yet because of the conflicts which arose, a suit was filed in which the trial court, some- 3 years after the construction took place, was expected to “straighten it all-out.” The reasoning of the trial court was valid and in light of the chaotic state of the exhibits, the end result was generally well-justified and supported by the evidence. There are, however, some mathematical problems which must be corrected.

Appellants’ first assignment of error is the trial court erred in concluding the contract was on a cost-plus, rather than a fixed fee, basis. The court addressed this issue as follows:

“The Court considers all litigants to be honorable people, and yet finds their testimony diametrically opposed. The Court can only look to the manner in which the construction was carried out to make a determination as to what type contract existed.
“In the early stages of construction, plaintiffs actually traveled around the area to obtain the best prices on materials. Materials were bought and paid for by the plaintiffs to the total tune of $116,321.99. This certainly does not support a position for a lock and key job.
“Further, in 1977-78, material prices were unstable and moving upward at a erratic rate. It is not logical that defendant agreed to a lock and key job on a house on which he had no detailed drawings and specifications, the construction of which would take at least one year, at a time when one did not know from day to day what materials would cost. It is therefore the finding of the Court that the parties agreed to a cost-plus contract as described by Mr. Baham for construction of the Smith residence.”

We agree with these conclusions and find the record supports the theory the contract was not entered into on a fixed fee basis.

Appellants contend further the trial court erred in accepting appellee’s records as reliable. As always, the trier of fact is granted a great deal of discretion when dealing with the credibility of witnesses and reliability of the evidence. The two records questioned by appellant are the “red book” in which Mrs. Baham accounted for all materials purchased for the Smith job, and the payroll sheets, which accounted for the labor expenses.

The red book contained hundreds of entries showing the date, the name of the supplier, the invoice number, and the type of material purchased. At the end of the red book Mrs. Baham totaled the expenses and entered a figure for “labor.” Although we find serious mathematical errors in the computation of the figures from the red book, we have no reason to disturb the trial court’s finding that the book is reliable in so far as it purports to represent materials purchased for the job.

Likewise, we find no error in the trial court’s acceptance of the payroll sheets as reliable evidence. Again, we have checked the computation of the figures ourselves in order to arrive at an accurate total spent on labor.

Before we discuss our findings as to the figures, we note the trial court found the parties had agreed to a cost-plus contract, “as described by Mr. Baham.” This arrangement, as heretofore stated, involved a labor fee, plus 25% for insurance, overhead and taxes, plus the cost of materials. To this figure was to be added a 15% fee for profit. At trial Mrs. Baham testified her calculation in the red book had not included the $116,321.99 paid by the Smiths directly to various suppliers for materials. Appellee argues this sum must be added into the formula and included when figuring the 15% profit.

The trial court apparently did not adjust the calculations found in the red book to include the $116,321.99 and we decline to do so here. We have no quarrel with Mr. Baham’s routine method of figuring his cost-plus contract. However, we note the typical situation would involve the contractor purchasing 100% of the materials himself. In the present case the homeowners purchased a substantial amount of the materials directly from suppliers, without any involvement on Baham’s part. Mrs. Smith testified some purchases were made pursuant to an agreement between the Smiths and Baham. Mr. Smith had some dealings with a lumber company and believed he could obtain better prices than Mr. Baham. The Smiths agreed to purchase the air conditioning system because Mr. Smith was knowledgeable about a heat pump and Mr. Baham was not. As the project progressed, it became necessary for the Smiths to pay certain suppliers because the suppliers delivered materials to the job site and demanded payment immediately.

Mr. Baham testified he had informed the Smiths he would charge them 15% on all materials, whether purchased by himself or by the Smiths. However, Mr. Baham admitted he never billed the Smiths for the 15% on these materials, although he did have a record of the Smith’s expenditures. He stated he intended to bill them but did not, due to the breakdown in the relationship.

We conclude the situation at hand is a deviation from the normal cost-plus contract because of the direct involvement of the owners in the purchasing of materials. We are not satisfied from the record that Mr. Baham proved there was any agreement between the parties these materials were subject to the 15% profit. Our conclusion is supported by the fact the final figures in the red book did not include this 15% charge and by the fact Mr. Baham never attempted to collect this fee from the Smiths. Absent proof of an agreement on this matter it would be unjust to allow Mr. Baham to tack on this profit as an afterthought.

We now examine the accuracy of the computation of figures on the payroll sheets in the red book.

In the grand total of figures, as Mrs. Baham transcribed them into the red book, is the sum of $93,056.37 for “labor.” We assume this includes the 25% fee for overhead, insurance and taxes. However when we added the items on the payroll sheets we arrived at these figures:

Labor.. $72,754.50
25% Pee- 18,188.62
Total Labor- $90,943.12

As pointed out by appellants, even if Mrs. Baham’s labor figure was correct, she made a serious error in addition in the red book. The trial court, apparently without checking the accuracy of the figures, relied upon them in granting Baham an award of $30,-937. To illustrate, we reproduce here the “grand total” as found in the red book.

Materials-$117,276.90
Labor-- 93,056.37
Total-$242,220.53

A simple addition check reveals the sum of these two figures is $210,333.27, which is $31,887.26 less than the amount computed by Mrs. Baham. After noticing this serious error we concluded we had no choice but to make an independent calculation of our own and therefore added every single entry in the red book to arrive at a final total of $114,070.44 for materials.

Therefore, using the formula set forth by Mr. Baham (but deleting the amount paid by the Smiths directly to suppliers) we reached the following conclusion:

Total labor-$ 90,943.12
Materials- 114,070.44
Total Cost-$205,013.56
Plus 15% - 30,752.03
Total Due-$235,765.59

At trial the parties stipulated the Smiths had already paid to Baham a total of $214,-789.19 during the course of the construction. Therefore, the amount owed by the Smiths is $20,976.40 rather than the $30,-937.00 awarded by the trial court.

This amount was offset by the amount the trial court ordered Baham to pay the Smiths. The court found the Smiths had to pay another contractor, Stuart Holcombe, $55,283.16 to complete the residence. Mr. Holcomb testified approximately 40% of the work he did was remedial in nature, i.e., it was done to remedy problems created by Mr. Baham. He remedied certain problems with the floors and with several interior doors, among other things. Therefore the court ordered Ba-ham to pay 40% of the amount paid to Mr. Holcomb, or $22,113.20. We find this a reasonable conclusion.

In addition, the trial court awarded a total of $24,445.96 for future repairs to the upstairs fireplace, windows, doors, the front columns, and sheetrock in the kitchen and living room. We feel the necessity of these future repairs, as well as their approximate cost were well substantiated by the testimony of two experts, Peter Weg-man, an expert in millwork, and Gerald Collums, an expert in carpentry. Therefore, we will not disturb this award.

We conclude the Smiths owe Baham a total of $20,976.40 on the original agreement to build the house, and Baham owes the Smiths a total of $46,559.16 for remedial work and future repairs. The difference between these figures and the final amount owed by Baham to the Smiths is $25,582.76.

For the foregoing reasons, the judgment of the trial court in favor of plaintiffs and against defendant is increased from the sum of $15,622.16 to the sum of $25,582.76, together with legal interest thereon from the date of judicial demand, until paid, and in all other respects the judgment is affirmed.

All costs are to be paid by defendant, Clyde Baham.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Although the petition alleges the price was $257,000, plaintiffs testified at trial the price was $255,000.

      . For reasons of simplicity we will refer to the Smiths as the appellants and to Baham as the appellee.

      . The red book shows these figures (added incorrectly) and then lists various fees added to the cost by Baham. It then grants various credits to the Smiths for sums already paid and finally shows a balance of $30,937.

      . The book contained several figures that were not entered in the usual column but were written off to the side. Because we found no explanation for these irregular entries, we did not include them in our computation.


author: SCHOTT, Judge. BARRY, Justice,

text:
    Jon ENGLISH v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Tulane University of Louisiana.
    Nos. C 1409, CA 1417.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 11, 1983.
    Writ Denied Oct. 7, 1983.

      Gibson Tucker, Jr., Tucker & Schoenekas, Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Paul Verkuil, Ronald Mason, Jr., Harry McCall, Jr., Wiley G. Lastrapes, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendants-respondents.
    Phillip A. Wittmann, Wayne J. Lee, Sarah S. Vance, Stone, Pigman, Walther, Witt-mann & Hutchinson, New Orleans, for defendant-appellee.
    Before SCHOTT, BARRY and KLEES, JJ.
   SCHOTT, Judge.

In these injunction proceedings plaintiff, Jon English, seeks to prevent defendants, Tulane University and the National Collegiate Athletic Association (NCAA), from declaring him ineligible to play football for Tulane on the basis of the NCAA rule regarding transfers by student athletes between schools. Upon filing his petition on September 2, 1983, plaintiff obtained a restraining order from the trial court which enabled him to play in Tulane’s first four games. After a hearing on September 29, the trial court denied plaintiff’s application for a preliminary injunction and recalled the restraining order. On September 30 plaintiff applied to this court for supervisory writs which were granted to issue a restraining order continuing the prohibition against Tulane and the NCAA from interfering with plaintiff’s participation as a football player and to convert plaintiff’s application to an expedited appeal from the trial court’s judgment of September 29.

Plaintiff graduated from high school where he had been an outstanding quarterback in the spring of 1979 and entered Michigan State University in the fall on a football scholarship. Realizing that his prospects for playing at Michigan State were poor he enrolled at Allegheny Junior College in Pittsburgh, Pennsylvania, in the summer of 1980. At that time his family resided in Pittsburgh and his father, Wally English, was on the coaching staff of the University of Pittsburgh. Plaintiff attended Allegheny during the 1980-1981 school year, graduating in the spring, and enrolled at Iowa State University in the fall of 1981. He was on the football team there for the 1981 and 1982 seasons. Once again he recognized that his prospects for playing at Iowa State were poor so he decided to make another move. His family was now residing in New Orleans where his father had taken the position as head football coach at Tulane. In January of 1983 plaintiff enrolled at Delgado Junior College in New Orleans and graduated from there in the spring. In August, 1983, he enrolled at Tulane where he sought to play football.

The NCAA is a private association of some 900 colleges and universities in the United States which regulates intercollegiate athletics. The member schools are committed to follow the rules of the NCAA regarding eligibility of players. Pertinent to this case are the following parts of Bylaws 5 — 1—(j) and 5-l-(k):

“(j) The student-athlete shall conform to the following eligibility provisions for all championships and in Divisions I and II for regular-season competition, practice and athletically related financial aid as indicated.
(7) A transfer student from a four-year institution shall not be eligible for any NCAA championship until the student has fulfilled a residence requirement of one full academic year (two full semesters or three full quarters), and one full calendar year has elapsed from the first regular registration and attendance date at the certifying Division I or Division II institution.
Ht ¾: * ⅜: ⅝: ⅜
(k) The student-athlete’s eligibility for NCAA championships is affected by, and the student-athlete must conform to, the following additional transfer provisions:
(1) A student who transfers from junior college after transferring from any four-year college shall complete one calendar year of residence at the certifying institution, unless the student:
(i) Has completed a minimum of 24 semester hours or a minimum of 36 quarter hours at the junior college following transfer from the four-year college, and one calendar year has elapsed since the transfer from the first four-year college, and, for Division I and Division II member institutions, has graduated from the junior college; or [Case No. 2931]
(ii) Returns to the four-year college from which the student transferred to the junior college, provided the student did not have an unfulfilled residence requirement at the time of the transfer from the four-year college. [Case No. 2941]”

While plaintiff was at Iowa State pondering his future he picked up a copy of a booklet published by the NCAA and entitled “NCAA Guide for the College-Bound Student-Athlete.” His attention was drawn to the following paragraphs in the section on “Eligibility”:

“3. A student who transfers to an NCAA member institution from a junior college after transferring from any four-year college must complete one calendar year of residence at the NCAA member institution in order to be eligible to NCAA championships or post-season football games, unless the student has completed a minimum of 24 semester or 36 quarter hours at the junior college following the student’s transfer from the four-year college and also has graduated from the junior college, and one calendar year has elapsed since the transfer from the first four-year college.
4. When a student has been in residence at two or more junior colleges, the terms of residence at all junior colleges may be combined in order to satisfy the residence requirements described in Paragraph Nos. 1, 2 and 3 of this section.” (Emphasis ours)

Although he was well aware of the general rule which is clearly designed to prohibit an athlete from playing for two different major colleges in successive years he perceived that the provisions of the booklet might be interpreted to declare him eligible to play at Tulane the following year on the theory that “the first four-year college” in his case was Michigan State and not Iowa State. However, plaintiff failed to read the following crucial language from the Introduction to the booklet:

“The information contained in this publication is designed to provide a general summary of NCAA rules and regulations in easy-to-read form to prospective student-athletes ....
This publication does not include all applicable provisions of NCAA legislation. Also, NCAA legislation may be subject to additional official interpretations when its application to specific situations is not readily apparent. Individuals should contact the NCAA national office if they have any questions about NCAA legislation.
Therefore, this pamphlet should be considered only as a guide to a general understanding of NCAA rules and regulations, with a view to avoiding involvement in a violation of NCAA legislation which might result in the loss of an individual’s eligibility or disciplinary action against a member institution.”

Although plaintiff testified that there was no question in his mind about his eligibility to play at Tulane the next year from the wording concerning “the first four-year college,” his father, Coach English, testified that his son called him and asked “if there was any possibility that he could be eligible at Tulane” after explaining how he had found the wording in the “student handbook” and his interpretation of the “first four-year college” language. Coach English testified that he told his son he didn’t know the answer but “would certainly check it out with our own rules interpreter at the university.” A day or two later Coach English having read the NCAA manual called on Ralph Petersen, Tulane’s NCAA liaison person, and asked him hypothetically, i.e., without identifying the problem as his son’s, if a player gone from a previous institution for a year and then attended a junior college would be eligible to play for Tulane. When given an affirmative response he reported to his son, “it was our feeling it was a good possibility he could be eligible.”

At this point plaintiff moved to New Orleans and enrolled at Delgado. Apparently Coach English had another conversation with Petersen within a month of the first in which he specifically alluded to his son and in April or May broached the subject with Tulane’s athletic director, Hind-man Wall, while the two were on a recruiting trip for the school. Wall testified unequivocally that he told English there was no way his son could be eligible. Nevertheless, he agreed to contact the NCAA for a ruling. A first letter by Petersen to the NCAA in April was answered by a staff person who flatly stated plaintiff was ineligible to play for Tulane in 1983. In May Wall signed a letter which had been prepared by plaintiff’s then counsel and in Tulane’s name advocated plaintiff’s position to the NCAA. This resulted in a telephone conference among the parties and the five person Administrative Committee of the NCAA in which plaintiff’s position was thoroughly considered and subsequently rejected by the committee. On July 15 the President of Tulane wrote the NCAA President and requested reconsideration by the Administrative Committee. This request was granted and the committee again ruled plaintiff ineligible.

Plaintiff appealed this ruling to the NCAA Council which heard his case on August 17, 1983. He was present and was accompanied and supported by his counsel, Wall and Tulane’s counsel. The Council affirmed his ineligibility. In the meantime, on August 7, plaintiff had begun to practice with the Tulane freshmen team which had the effect for the first time of precluding him from returning to Iowa State to play ball. On the day before the first game plaintiff initiated these proceedings and obtained the restraining order which enabled him to play.

In this court plaintiff contends that the trial court erred in denying him a preliminary injunction because 1) he was denied due process, 2) the NCAA’s actions in declaring plaintiff were capricious, arbitrary, unfair, and discriminatory, 3) plaintiff was the beneficiary of a stipulation pour autrui arising out of a contract between Tulane and the NCAA which stipulation was breached, 4) the NCAA was equitably es-topped from declaring plaintiff ineligible, and 5) the NCAA is a monopoly operating in violation of Louisiana law prohibiting combinations in restraint of trade.

Plaintiff’s due process argument is based on the theory that the NCAA did not adequately inform him of the rules regarding his eligibility. He argues that the rule as quoted in the NCAA Guide literally entitled him to play ball with Tulane in 1983 because a year had elapsed since his transfer from the first four-year college, Michigan State, in 1980. Thus, he attacks the interpretation placed on the rule by William Hunt, head of the NCAA’s Legislation and Enforcement Section, as being unreasonable in defining “first” to be the last four-year college. He argues further that the Guide’s references to residence and semester hours completed at junior colleges further confuse the transfer rule and create further ambiguity. Finally, he rejects the notion that he would have sought further interpretation of the rule even if he had read the introduction because it was so clear to him that he was eligible.

The record does not support this argument. First, it is clear from the testimony of plaintiff’s father, Coach English, that there was from the very beginning a question in plaintiff’s mind about his eligibility notwithstanding the way he wanted to read the rule. He was plainly aware of the underlying and laudable policy of the NCAA to prevent a student from playing for two different colleges in successive years. Second, while he pretends to a sincere belief that the rule plainly declared him eligible his first move after seeing the rule was to raise a question about it with his father who in turn raised questions about it with Petersen and Wall. He was squarely in the teeth of the Guide’s introduction, i.e., he had questions about NCAA legislation, and was obliged to contact the NCAA national office for answers. But he failed to avail himself of this opportunity. Instead, he embarked on a course which he knew was perilous and preferred to take a chance that somehow his interpretation might be accepted by the NCAA.

It is well to note here that plaintiff was determined to play for his father at Tulane if at all possible. His prospects at Iowa State, as at Michigan State previously, were poor and not at all conducive to his being considered for a professional football contract upon his graduation from college. He explained that his skills as a quarterback could be best developed under the tutelage of his father who was a pass oriented coach. Since this would be his last year of college ball it was important for him to make the most of it. Only his interpretation of the transfer rule would make all of this possible.

We find Hunt’s interpretation of the rule to be absolutely correct. The rule is dealing with a present college attempting to certify a player as eligible when he has played for a previous college. It contemplates two colleges, the first and the second. If one plays for a college one year he can’t play for another college the next year. He must sit out for a year after playing for the first college. The rule does not and need not concern itself with the bizarre kind of a situation where one had played for yet a third college in the distant past. Reduced to its simplest terms a player may not jump from one college to another in successive years. We repeat that plaintiff on his own and again after speaking to his father was generally aware of the rule’s meaning and while hoping to have found a loophole had questions about his theory.

Finally, plaintiff’s preoccupation with the rule’s junior college residence requirements is irrelevant. He is ineligible to play for Tulane in 1983 because he played for Iowa State in 1982. No further inquiry into his eligibility on the basis of his attendance at Allegheny Junior College and Delgado need to be made.

There is no support in the record for plaintiff’s contention that the NCAA was arbitrary, capricious, unfair, or discriminatory in dealing with his case. Had he inquired of the NCAA as to his plans before he left Iowa State he would have been told that he could not play at another college in 1983. Some 900 colleges belong to the NCAA and thousands of players abide by its rules. They do so voluntarily apparently convinced that constraints on their freedom to move about from college to college are a fair price to pay for protection against the evils which would emerge from untrammeled recruiting practices and uncontrolled pirating of players among the colleges. The word “arbitrary” connotes acting without reason or judgment, Black’s Law Dictionary Revised Fourth Edition; or determined by whim or caprice, The American Heritage Dictionary of the English Language. “Capricious” is virtually synono-mous. The record reflects that the NCAA, in adopting and implementing the transfer rule at issue here acted quite reasonably in its efforts to prevent players from jumping from one school to another in successive years. Plaintiff was not dealt with unfairly. He was the victim only of his own plans and his own hope for special treatment. As to discrimination, Hunt testified that in all his years with the NCAA he never saw a case like plaintiff’s and plaintiff failed to produce proof of any case like his which would provide a basis for his charge. He did show that some years ago the NCAA adopted the present rule to add the “first four-year college” language to close a loophole which previously existed and which enabled players to move from one four year college to another in successive years, but this is not plaintiff’s situation and his charge of discrimination gets no support from these facts.

Plaintiff contends that he is the beneficiary of a stipulation pour autrui by virtue of a contract between Tulane and the NCAA pursuant to LSA C.C. Art. 1890 which provides as follows:

“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.”

As the trial judge correctly noted, this principle has no application if the benefit derived from the contract by the third party is merely incidental to the contract in question. HMC Management v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4th Cir.1979) writs refused 378 So.2d 1384 (La.1980). Tulane joined the NCAA long before plaintiff came on the scene. We need not recite the advantages accruing to the school and its fellow members in maintaining their association in the NCAA. Whatever benefits may flow to a player like plaintiff are purely incidental to the benefits flowing to the schools. Furthermore, it is difficult to understand how plaintiff can claim a breach of his rights as a beneficiary of Tulane’s membership in the NCAA when he injected himself into that relationship by taking advantage of a loophole which he pretended to perceive. In other words, while he was examining Tulane’s contract with the NCAA, he seized upon a part of it and tried to make himself a third party beneficiary of it. Yet while questioning that he qualified he failed to make an inquiry to the NCAA which, under the contract, was the proper party to whom such an inquiry was to be made. Art. 1809 has no application to such a matter.

In order for plaintiff to prevail on the doctrine of equitable estoppel he must show that there 1) was a representation made in the NCAA Guide that he could transfer and 2) he placed reasonable reliance on the representation. Even if we assume that the Guide in speaking of the “first four-year college” could be construed to mean Michigan State as opposed to Iowa State in plaintiff’s case it was unreasonable for him to rely on that interpretation. Since he had questions in his mind he was required by the Guide’s introduction to make an inquiry to the NCAA before he embarked on his transfer. His conduct was unreasonable and equitable estoppel does not lie.

Finally, plaintiff invokes the protection of R.S. 51:122 which provides that every contract in restraint of trade in this state is illegal. In HMC Management v. New Orleans Basketball Club, supra, we concluded that plaintiff failed to state a cause of action under the Louisiana Monopolies Law with respect to the National Basketball Association’s relationship to its club and players because the association and its member, the New Orleans Jazz, were engaged in interstate commerce in their operations and under Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1872) the field of interstate basketball had been preempted by federal law. It cannot be gainsaid that the NCAA is engaged in interstate commerce. Its essence is to deal with the athletic relationships among players and colleges throughout the United States. We agree with the trial court that R.S. 51:122 is inapplicable to plaintiff’s charge against the NCAA.

We hasten to add that even if it were, plaintiff’s specific complaint is with respect to the transfer rule and is analogous to the complaint considered in Chabert v. Louisiana High School Athletic Ass’n., 323 So.2d 774 (La.1975). There the court upheld a high school transfer rule reasoning that it was a reasonable rule designed to prevent the evils of recruiting. The same reasoning would apply to this case and leads to the conclusion that the NCAA transfer rule is a reasonable one deserving to be enforced.

We are confronted here with an appeal from the denial by the trial court of a preliminary injunction. Such a decision will be disturbed only in cases where a clear abuse of discretion has been shown. Picard v. Choplin, 306 So.2d 918 (La.App. 3rd Cir.1975). In the process of summarizing the evidence and analyzing plaintiff’s arguments we have already demonstrated that there was no abuse of discretion in this case. As the trial judge pointed out in his reasons for judgment, the trial court “indulged” plaintiff with every opportunity to prove his case and he failed to convince the court that he was entitled to further injunc-tive relief. We conclude that plaintiff has failed to show an abuse of the trial court’s discretion in dismissing plaintiff’s application.

Accordingly, the judgment appealed from is affirmed. The restraining order issued by this court on September 30, 1983, is recalled, vacated and set aside.

AFFIRMED.

RESTRAINING ORDER RECALLED.

BARRY, J., dissents with written reasons.

BARRY, Justice,

dissenting.

This case involves a very unique and isolated situation involving a very narrow question of interpretation of one word in an NCAA Bylaw which may determine the eligibility for a student-athlete’s last year of intercollegiate football competition.

Jon English, á Junior College transfer student to Tulane University, should be declared eligible to participate in intercollegiate football for the 1983 season because he has fulfilled all three requirements listed under the first exception to the general one-year residency rule as published in Bylaw 5-1-(k)-(1) of the NCAA Manual for 1983-84.

Bylaw 5-1-(k)-(1) provides:

(k) The student-athlete’s eligibility for NCAA championships is affected by, and the student-athlete must conform to, the following additional transfer provisions:
(1) A student who transfers from a junior college after transferring from any four-year college shall complete one calendar year of residence at the certifying institution, unless the student:
(i) Has completed a minimum of 24 semester hours or a minimum of 36 quarter hours at the junior college following transfer from the four-year college, and one calendar year has elapsed since the transfer from the first four-year college and, for Division I and Division II member institutions, has graduated from the junior college; or
(ii) Returns to the four-year college from which the student transferred to the junior college, provided the student did not have an unfulfilled residence requirement at the time of the transfer from the four-year college.

Since Jon did not complete one calendar year of residence at the certifying institution (Tulane) by the beginning of the Fall 1983 term, he. must qualify under one of the above “unless” provisions in order to be determined eligible for his final season. Jon’s status depends upon whether he can meet each of the three elements set forth in the first exception to the one-year residency rule outlined in Bylaw 5-l-(k)-(l) (i) as listed above. Jon English has clearly met each of these requirements to qualify him for participation in intercollegiate football at Tulane University.

An analysis of each of the three elements of this exception and the relevant facts follows:

I.“HAS COMPLETED A MINIMUM OF 24 SEMESTER HOURS AT THE JUNIOR COLLEGE FOLLOWING TRANSFER FROM THE FOUR-YEAR COLLEGE.”
(1) Jon English graduated from Brother Rice High School in Detroit, Michigan as a 2.00 qualifier in June of 1979, as a highly-recruited Parade Magazine All-American Quarterback.
(2) Jon accepted a football scholarship to Michigan State University [the first four-year college] and entered in the Fall Semester of 1979. He attended this first four-year college for two semesters through the Spring of 1980.
(3) Due to an injury and other personal problems Jon encountered, he transferred to Allegheny Community College, a junior college in Pittsburgh, PA [the first junior college ] which he attended for two summer sessions and the Fall term of 1980. This completed his degree requirements, and he graduated from this first junior college. Jon did not participate in football at Allegheny.
(4) Jon enrolled at Iowa State University [the second four-year college] in the Spring Semester of 1981. He completed four semesters at this second four-year college through the Fall Semester of 1982.
(5) Relying upon the rules published in the NCAA Manual and the NCAA Guide for the College-Bound Student-Athlete, Jon transferred to Delgado Community College in New Orleans [the second junior college] in the Spring Semester of 1983, from which he completed 25 semester hours through August of 1983 and has received a degree.
II. “ONE CALENDAR YEAR HAS ELAPSED SINCE THE TRANSFER FROM THE FIRST FOUR-YEAR COLLEGE.”
(1) The first four-year college in this case is Michigan State University which Jon finished attending in the Spring of 1980. Over three (3) years have elapsed since Jon’s transfer from the first four-year college.
(2) The official intent of the NCAA in changing the language of this rule, published in the records of the Proceedings of the 69th Annual NCAA Convention held in January, 1975, was as follows:
“Intent: to prohibit a transfer from a four-year institution from attending and graduating from a junior college and becoming immediately eligible at another four-year institution unless at least one calendar year has elapsed since his transfer from the initial four-year institution." [Emphasis added.] Here the NCAA is defining the phrase “the first four-year college” to mean “the initial four-year institution.” This certainly should represent to those individuals relying upon these rules that the word “first” does in fact mean “first or initial institution.”
(3) It would be grossly unfair and unreasonable to expect Jon English to interpret the word “first” in any other manner than its common usage.
III. “FOR DIVISION I AND DIVISION II MEMBER INSTITUTIONS, HAS GRADUATED FROM THE JUNIOR COLLEGE.”
(1) Jon received a degree from Delgado Community College in May of 1983.

Jon English has fully complied with all three specific elements of the exception to the general rule, as set forth in Bylaw 5-l-(k)-(l), and, therefore, should not be denied the opportunity to complete his last year of football eligibility at Tulane University this Fall.

ALL of the above was written in July, 1983 by Tulane and submitted to the NCAA Council to support its then belief that English was eligible. How can this Court now say that English “... perceived that the provisions of the booklet [NCAA Guide] might (my emphasis) be interpreted to declare him eligible ... ”? Tulane had no doubt he was eligible.

The majority then leans on what it describes as the “crucial” language in the Guide’s Introduction. The Introduction says the Guide is a general summary of the NCAA rules in easy-to-read form. Most importantly, it warns the rules “may be subject to additional official interpretations when its application to specific situations is not readily apparent. (My emphasis) Even Mr. Hunt, the NCAA official, admitted the rule’s application was readily apparent as it appeared in the Guide.

Hindman Wall, Tulane’s athletic director, testified he told Coach English in April or May that Jon English was not eligible. However, on May 28, 1983, Wall wrote to the NCAA:

In relying upon this published NCAA rule, by the end of this summer, Jon English will have clearly met all three specific criteria to qualify him under the published exceptions to the one calendar year residency requirement in accordance with Bylaw 5-l-(k)-(l) of the 1988-84 NCAA Manual. (Mr. Wall’s emphasis)
It would be unreasonable to expect anyone to interpret this word “first” in any way other than its common usage. I call your attention to Bylaw 5-l-(k)-(l) (ii) where the term “the four-year college from which the student transferred” is used. Certainly, if the NCAA wanted individuals relying upon this rule to think that “first” means the “immediately preceding four-year college”, the NCAA could have used that exact same language.

Mr. Wall’s letter concluded:

In our judgment, Jon English has clearly met all three specific elements needed to comply with the exception to the general rule. The way the exception is drafted is not ambiguous on its face. In fact, it is very clear. It would be grossly unfair to apply anything but a reasonable interpretation of the word “first” under its common usage.
In addition to all of the above commonsense arguments, the equities cry out in Jon’s favor in this case.

The majority dismisses plaintiff’s due process argument because he discussed his eligibility with his father, Coach English, which they claim indicated plaintiff was unsure of his position. I disagree. Jon English testified he was certain he met the exceptions to the one year residency rule. He merely discussed the situation with his father who questioned Ralph Petersen (Tulane’s NCAA liaison); both the Coach and Petersen felt “it was a good possibility he could be eligible”. From Mr. Wall’s letter, we know he had no doubt and understood the clear, unambiguous language just as plaintiff did.

The NCAA virtually controls football in over 900 colleges. Its purpose is to regulate sports programs and maintain the integrity of amateur athletics. Member schools must adhere to rigid rules or suffer severe sanctions. Considering the NCAA’s enormous control (and its laudable purposes), it must also bear some burden to account for its heavy hand options.

Along with the NCAA’s privileges goes the duty to provide clear and accurate information when disseminating its many rules and regulations. Jon English’s interpretation of Bylaw 5-l-(k)-(l) was reasonable because the language is clear. His conclusion was supported by Mr. Wall. “First” still means “first”, not “last”, contrary to what Mr. Hunt would have us believe. What the NCAA intended, and. what it published, were two different things. “Intent” is immaterial when the expression is unambiguous.

The majority’s opinion is a Monday morning quarterback’s opinion of what should be, but wasn’t; what was intended, but not expressed. The NCAA goofed on the English language (no pun intended). Jon English relied on the NCAA bylaw and changed his position to his detriment. He was supported and encouraged in his belief by his more sophisticated superiors. Surely he has a right to protect his interests based on these extraordinary facts. That right should permit his eligibility under Bylaw 5-MkMi).


author: BOWES, Judge.

text:
    Michael BATISTE v. H.E. WIESE & COMPANY.
    No. 83-CA-380.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9, 1983.
    Stephen J. LaBorde, Metairie, for plaintiff-appellant.
    William P. Golden, Jr., Accardo, Carville, Edrington, LeBlanc & Golden, La Place, for defendant-appellee.
    Before BOWES, GAUDIN and GRIS-BAUM, JJ.
   BOWES, Judge.

Plaintiff-appellant takes this appeal from a judgment of the trial judge finding him temporarily and totally disabled within the scope of the Workmen’s Compensation Act. Plaintiff alleges total and permanent disability. The trial court, in well-written reasons for judgment, found that plaintiff’s injuries were resolved as of May 11, 1981. We affirm.

Michael Batiste suffered injury to his back on February 21, 1980, in an accident which occurred during the course and scope of his employment. The facts of the accident are not contested; (plaintiff was riding in the bed of a truck, with several other workers, when the truck hit a hole and Batiste was slammed against a piece of iron in the bed); the sole issue at trial was the extent of the injury. Appellant was paid compensation from March 1, 1980, through February 6, 1981, at the rate of $148.03 per week. He contends that he continues to suffer severe and debilitating pain in his back and legs, which pain results from a psychiatric condition of “hysterical conversion”, as opposed to any continuing “objective physical” impairment.

Appellant was examined and treated by several doctors. Immediately after the accident, he was referred by defendant to a Dr. Albrecht, in Reserve, who treated him for two weeks. He was given pain medication, X-rays were taken, and some form of therapy initiated. After two weeks, appellant received permission to be treated by his family doctor, Dr. Roland Waguespack (Dr. Waguespack’s records show his first treatment of plaintiff was on February 29th, eight days after the accident). Dr. Waguespack again took x-rays, which were interpreted as being within normal limits. Other tests were performed, physical therapy was continued, and a back brace, a muscle relaxer and a pain medication were prescribed. Mr. Batiste was also given shots to reduce muscle spasms, as part of his ongoing therapy.

The initial diagnosis was muscle strain due to injury; after continued treatment of at least once a week, Dr. Waguespack began to suspect a possible ruptured disc in the plaintiffs lower back, and felt that a myelogram was in order. However, in April, defendant’s insurer had arranged for Batiste to visit Dr. Kenneth Adatto, an orthopedist, who began treating plaintiff concurrently with Dr. Waguespack. Dr. Waguespack stated that under the circumstances he felt he was not in a position to tell Dr. Adatto how to handle the case, and so did not order a myelogram. Dr. Wagues-pack continued the conservative measures of physical therapy and medications, at the suggestion of Dr. Adatto, through the time of the trial. Dr. Waguespack had concluded that perhaps plaintiff had a “weak back” syndrome, and that he would continue with treatment, even though he couldn’t find anything physically wrong, because the treatments seemed to help for short periods of time. Waguespack also postulated that any benefits of therapy were purely psychological if plaintiff did suffer “conversion reaction.”

Dr. Adatto felt that Batiste suffered a lumbar syndrome — muscle and ligament strain — and that exercise and medication were sufficient to effect recovery. Accordingly, the conservative type treatments were still continued until May when Dr. Adatto noted increasing spasms and recommended an electromyelogram and nerve conduction studies. The tests were normal. In June, 1980, Dr. Adatto believed that Batiste had a bruised spine and advised him to attempt to go back to work, so that any possible pre-rupture condition might be more fully brought out. Plaintiff had not, in actuality, attempted to return to work.

In July, Dr. Adatto ordered a radiculo-gram on the L4, L5 and L5 SI levels of appellant’s back, because he continued to suffer a lot of pain. This test was performed in September and the radiculogram was positive on the right side. Following this, the record reveals that Mr. Batiste continued to complain of worsening pain. In December, a lumbar myelogram and lumbar discogram were performed. The results of both of these tests were considered normal by Drs. Adatto and Watermeier. The myelogram, which was considered normal, was given the most credence.

By February, 1981, Adatto’s associate, Dr. John Watermeier, began to suspect that Batiste may have suffered some hysterical conversion, because he continued to complain of pain despite a lack of objective findings. Dr. Watermeier defined “hysterical conversion” or “conversion reaction” as a psychoneurosis. Generally, this condition is characterized by the substitution through psychic transformation of physical symptoms for anxiety. Tranquilizing medication was prescribed and the patient was advised to “return” to work. Batiste still did not attempt to do so.

In April 1981, Dr. Watermeier’s clinical impression was lumbar neuritis, inflammation of the nerves of the lower back. On May 11, 1981, Watermeier was unable to find any objective findings and recommended appellant consult another physician for a second opinion, and also that he see a psychiatrist. As of that date, Dr. Water-meier felt that the plaintiff could not and should not perform heavy manual labor.

On March 30, 1981, Mr. Batiste was examined by Dr. Harold Stokes, an orthopedic surgeon, at the request of defendant’s insurer. Dr. Stokes found no evidence of physical injury, and there were no findings by him to prevent appellant from his normal occupation. In July, 1981, Mr. Batiste saw Dr. Carl Culicchia, a neurosurgeon, again at the behest of defendant, who found no neurologic injury or disorder to account for the symptoms complained of. No functional disability was assigned, and Dr. Culicchia suggested appellant return to full activity.

In March, 1982, plaintiff was evaluated by Dr. Chester Scrignar, a psychiatrist, whom he visited on his own, or his counsel’s, initiative. After the interviews (there were two interviews with the plaintiff and one with his girlfriend, Miss Harvey), Dr. Scrig-nar diagnosed “post-traumatic stress disorder with depression.” According to this physician, the pain experienced by plaintiff was directly related to the accident, and that, as of the time of the examination, Mr. Batiste was absolutely unable to return to work. In addition, it was his opinion that, without psychiatric treatment, it was highly unlikely that Batiste’s neurosis or pain manifestation would have improved.

Defendant then sent Batiste to Dr. Herman Columb, a psychiatrist of their choice, who found no evidence of conversion reaction and felt that appellant could return to work.

The above summary of available medical information indicates to this court that by May of 1981 any pain which appellant was experiencing was no longer explicable by neurological, orthopedic, or internal medicine. If Mr. Batiste still suffered, there were no objective findings to account for such. If Mr. Batiste remained incapacitated at all after May, 1981, his problems would, therefore, in our opinion, have been of a psychiatric nature.

We are mindful of the duty of this court to review such claimed disabilities in workmen’s compensation cases with utmost caution. Because such symptoms often can be easily feigned, the evidence must be carefully scrutinized and every precaution taken against unjustified claims. Reliford v. Fitzgerald Contractors, 401 So.2d 490 (La.App. 2nd Cir.1981). The nature of the claim, necessarily subjective, should be construed together with as much objective evidence as available, in order to reach a fair and reasonable conclusion.

With deference to all the physicians involved, and although we may have given a slightly larger award, we find the conclusion of the trial court to be a fair and reasonable judgment. Whether that court found the opinion of one psychiatrist or some other physician more persuasive than that of another is a fundamental exercise of the trial judge’s discretion in evaluation of witnesses. His factual conclusions are entitled to great weight and should not be disturbed in the absence of manifest error.

.... where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring, 283 So.2d 716 (La.1973)

There was testimony relative to plaintiff’s diminished sexual capacity, social interests, etc., but these are not relevant considerations in this workmen’s compensation case. The issue to be decided is whether or not plaintiff-appellant is able to return to work at his former occupation. The preponderance of the evidence indicates that he is. We find, as did the trial judge, that the date plaintiff was referred for a second opinion, and additionally to a psychiatrist, operates as the last date appellant could be found disabled (the date he was effectively discharged by his chief treating physicians).

From the record, and from Dr. Water meier’s letter of February 10, 1981, to defendant’s insurer, stating that Mr. Batiste could resume regular work activity, as there was no evidence of orthopedic pathology, we find that it was reasonable at that time for appellee to suspend the regular compensation benefits of plaintiff. Consequently, we cannot say that appellees acted arbitrarily or capriciously in light of the explicated medical testimony.

Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by appellee.

AFFIRMED.

      . Stedman’s Medical Dictionary, Fifth Unabridged Lawyer’s Edition, Anderson Publishing Co., 1982.


text:
    STATE of Louisiana v. Jimmy SPRINKLE.
    No. 83-KA-354.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for plaintiff/appellee.
    Joseph L. Montgomery, Gretna, for defendant/appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Jimmy Sprinkle was charged by Bill of Information filed June 11, 1982 with a violation of La.R.S. 14:62.2 (simple burglary of an inhabited dwelling). A plea of “not guilty” was entered on July 1, 1982. Following multiple motion hearings, trial before a twelve person jury was commenced on November 30, 1982. On December 1, 1982, the jury returned a verdict of “guilty of simple burglary of an inhabited dwelling.” A Motion for a New Trial was heard on December 14, 1982, and denied by the trial court. • On that same date, the defendant was sentenced to twelve (12) years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence.

We affirm the conviction, but vacate the sentence and remand to the trial court for resentencing.

On February 1, 1982, Susan Tebeleff arrived home from work about 4:20 p.m. She went to the mailbox area of the apartment complex where she met her neighbor, Paul Hebert, Jr. Together they started up the stairs to their respective apartments. About the time they reached the first landing, Hebert looked up and saw a man and woman carrying a mirror down from the third floor. The two put down the mirror and continued on down the stairs to the first floor, passing Paul and Susan on the stairs. As Susan reached the mirror, she recognized it as her own and shouted to the couple who were now getting into a blue Cadillac. The man looked up and then got into the car and drove away. Tebeleff and Hebert viewed the license number and wrote it down. Both saw large objects in the back seat of the car, but the objects were not recognizable as they were covered.

The police were called and when they arrived it was verified that Susan Tebe-leff’s apartment had been burglarized. Missing was her T.V. set, her stereo system, candlesticks, clothing, linens, pillows, jewelry and a camera.

The police ran the license number and found that the owner of the vehicle viewed leaving the scene was Clarence Angar. Information received from Mr. Angar placed Jimmy Sprinkle in possession of the automobile at the time of the burglary. Paul Hebert identified Jimmy Sprinkle from a photo-lineup as the man seen carrying the mirror down the stairway. An arrest warrant was obtained and on or about May 27, 1982, Sprinkle was arrested for the instant offense.

The defendant assigns the following as errors in the trial of his case:

1. The trial judge committed reversible error when he failed to grant defense motions for mistrial, based upon improper remarks made by the prosecutor during closing argument.

2. The trial judge committed reversible error when he denied the defense’s motion for a new trial, based upon incorrect evi-dentiary rulings which were prejudicial to the defendant during the course of the trial.

Assignments of Error Numbers 1 and 2

In both assigned errors, counsel for appellant contends that in his closing argument to the jury the prosecuting attorney “intended to refer to the defendant’s failure to take the stand” and, consequently, that the trial judge erred in both refusing to grant the defense’s motion for a mistrial, as well as defendant’s motion for a new trial.

Louisiana Code of Criminal Procedure Article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense; ... [and]

Louisiana Code of Criminal Procedure Article 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error; . ..

The following are the statements made by the prosecutor.

“... as to why he burglarized the place, who knows? You’ve got the state’s evidence. It’s unassailed. Who knows why he burglarized it? .... ’
Transcript December 1, 1982, pp. 14 & 15.
“. .. nice rhetoric. It doesn’t assail the evidence. Remember I told you earlier? You heard the evidence. Have you heard anything to the contrary? Anything to assail it? No....”
Transcript December 1, 1982, pg. 40.
“. .. now, you heard the state’s evidence. It’s sitting there, and again, unassailed with nothing to the contrary.. . . ”

In State v. Fullilove, 389 So.2d 1282, 1284 (La.1980), the Court noted:

The purpose behind the rule embodied in article 770(3) is to prevent attention from being drawn to the fact that the defendant has not testified in his own behalf. When the remark directly points out that the defendant has not testified, it is irrelevant whether the prosecutor intended the jury to draw unfavorable inferences from the defendant’s silence, [citation omitted]

Historically, remarks characterizing the state’s case as unrebutted have been deemed to be within the permissible scope of argument set forth by C.Cr.P. art. 774, which provides in part, “[t]he argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” See State v. Sims, 346 So.2d 664 (La.1977), and State v. Reed, 284 So.2d 574 (La.1973). [emphasis ours]

However, the Louisiana Supreme Court in State v. Perkins, 374 So.2d 1234, 1237 (La.1979) modified its previous rulings, holding:

When the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify, see United States v. Buege, 578 F.2d 187 (7th Cir.1978). For these reasons it is clear that prosecution violated the prohibition embodied in Article 770 and that the trial judge’s refusal to grant a mistrial was therefore erroneous.

Further, the Supreme Court in State v. Harvill, 403 So.2d 706 (La.1981), noted by footnote:

An older line of cases, originating with State v. Howard, 262 La. 270, 263 So.2d 32 (La.1972) and State v. Reed, 284 So.2d 574 (La.1973) [both cited as authority in the state brief] suggested that only direct references to the accused’s failure to take the stand constituted grounds for reversal on appeal. However, these holdings were clearly contrary to the express language of LSA-C.Cr.P. art. 770 and are no longer followed. See State v. Fullilove, 389 So.2d 1282 (La.1980) and State v. Perkins, 374 So.2d 1234 (La.1979). (emphasis added).

And more recently in State v. Latin, 412 So.2d 1357 (La.1982), the court stated:

References made in closing argument that the State’s case stands uncontrovert-ed have been frequently upheld by this Court. See State v. Sims, 346 So.2d 664 (La.1977); State v. Reed, 284 So.2d 574 (La.1973). A statement that the State’s theory of the case remains unassailed encompasses the entire case presented by the defense and does not focus on the defendant’s failure to take the stand. However, when the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontro-verted focuses the jury’s attention on the defendant’s failure to testify. See State v. Perkins, 374 So.2d 1234, 1237 (La.1979).

Considering the foregoing caselaw, the remarks of the prosecutor could be said to come perilously close to prohibited comments if the defendant was the only person who could refute the State’s evidence. But this is not the case here. The woman who was with Sprinkle at the time of the offense was an uncharged participant and a perfectly valid witness for the defense. Since she was not billed as a co-defendant, nor otherwise charged, she could have been called to testify by Sprinkle to refute the State’s case, and since the defendant made no showing that the woman was unavailable to the defense as a witness, or refused to testify, we must assume that she was simply not called or attempted to be called by the defense.

We next look to the intent of the prosecutor in making his comments. We do not find that the prosecutor’s remarks were intended to bring to the jury’s attention the fact that the defendant failed to testify; rather we find that the remarks were merely a comment on the lack of evidence presented by the defense. It should be noted that after the State had put on its witnesses and rested, the defense also rested without putting on a single witness or introducing evidence of any kind.

For the reasons set out above, we find that the defendant’s assignments of error lack merit.

Error Patent

A review of the record for errors patent revealed the following:

Illegal Sentence

The penalty provision of R.S. 14:62.2 states, “[wjhoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.”

The commitment order of the defendant (R. p. 68) and the minute entry concerning the sentence (R. p. 12) reflect that the trial court sentenced the defendant to imprisonment at hard labor for a term of twelve years without the benefit of parole, probation, or suspension of sentence.

In State v. Boowell, 406 So.2d 213 (La.1981), the court noted that the sentencing provision of La.R.S. 14:62.2 was “ambiguous” and, after observing “that it is a fundamental principle of statutory construction that penal provisions are strictly construed in favor of the defendant, who must be afforded the benefit of genuine ambiguity [citations omitted],” declared the defendant’s sentence of three years at hard labor without benefit of parole, probation or suspension of sentence, to be illegal.

The issue was clarified in State v. Conley, 411 So.2d 448, 449 (La.1982) when the court held specifically “that the ineligibility provision should attach only to the statute’s minimum one year term.”

Since the record reveals that the defendant had multiple previous felony convictions, we do not find a term of 12 years to be an excessive sentence by any reasoning. However, in accordance with the above jurisprudence, which we are bound to follow, we hold that the portion of the sentence providing that the entire 12 year term shall be served without the eligibility for parole, probation or suspension, is illegal and remand the case for resentencing.

AFFIRMED IN PART, REMANDED FOR RESENTENCING.


author: CURRAULT, Judge.

text:
    Albert D. HOFFMAN v. SWACO, A DIVISION OF DRESSER INDUSTRIES, INC.
    No. 83-CA-400.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Charles M. Stevenson, Chalmette, for plaintiff-appellee.
    Gary M. Zwain, Johnston & Duplass, New Orleans, for defendant-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “L”, wherein the Honorable Lionel R. Collins rendered judgment in favor of plaintiff, Albert D. Hoffman, and against the defendant-employer, SWACO, a division of Dresser Industries, Inc. Hoffman was adjudged totally and permanently disabled and SWA-CO was cast for compensation'benefits of $183/week until that disability ceases. SWACO has appealed that judgment.

Albert Hoffman applied for employment with SWACO and was interviewed by Mr. Marlon Magee, SWACO’s operations manager. Mr. Magee sent Hoffman to the Expressway Medical Center for a pre-employment physical. At this initial physical, Hoffman was diagnosed as having a right inguinal hernia in need of repair. Mr. Hoffman could not be hired as a result of the opinion of the initial examining physician, so Mr. Magee sent Hoffman to the Westbank Medical Clinic for an additional physical exam and second opinion. This examination gave Hoffman a clean bill of health with no finding of any hernia and he was hired and began working for SWACO on November 13, 1981.

The plaintiff’s work was that of a serviceman; his job consisted of servicing rented equipment already in use in the field or delivering and setting up or removing and returning such equipment. On January 13, 1982, Hoffman was working alone servicing Rig MGF-47 located in St. John the Baptist Parish. He had been called out to repair certain stroke counters located on that rig. In addition to servicing these stroke counters, Hoffman had to trace the wires from the stroke counters to the panel. This process took a while as he had to continually go back and forth checking the wires to see if they were registering. For safety reasons, access to these wires was difficult and Hoffman had to sometimes climb, stoop or crawl to service them. It is of special interest to note that he carried his tool box weighing approximately thirty pounds with him wherever he went on the job site.

After completing this job, Hoffman went down to his truck and began cleaning up and preparing for the ride home. It was at this time he first noticed he was not feeling well and was experiencing sharp pain in his right hip radiating down to his right knee causing him to limp at times.

As required by SWACO, Hoffman phoned the shop, told them he was finished and checked to see if there was any other work to be done in the area. As no one was at the shop when he returned, Hoffman went home. The next morning when plaintiff returned to work, he informed Mr. Bourgeois, Service Manager at the SWACO Harvey Shop, that he was not feeling well and had hurt himself. Bourgeois related this information to Mr. Magee and Hoffman was told to see a doctor.

Plaintiff was examined by Dr. Akio Kit-ahama who diagnosed him as having a right inguinal hernia. It was Dr. Kitahama’s opinion that surgical intervention was required to prevent the hernia from becoming aggravated, such as in incarceration or strangulation, thus posing a life-threatening situation. Dr. Kitahama discussed surgery with Hoffman and was under the impression he would schedule surgery almost immediately. However, plaintiff returned to work only to be terminated February 26, 1982 for reasons unrelated to his medical problems.

SWACO now appeals and asserts the following specification of errors: that

(1) The trial judge erred by accepting plaintiff’s testimony in view of the fact that such testimony was directly contradicted by at least four defense witnesses, and as a matter of law cannot constitute proof of a work-related accident; that

(2) The trial judge abused his discretion in accepting plaintiff’s testimony over testimony by four defense witnesses, all of which serve to contradict plaintiff’s testimony regarding the occurrence of a work-related accident; that

(3) The trial judge erred by accepting plaintiff’s testimony regarding the timely reporting of an alleged accident, when such testimony was directly contradicted by defense witnesses; that

(4) The trial judge erred in rendering plaintiff totally and permanently disabled when the evidence revealed that plaintiff has in fact worked subsequent to his alleged accident; that

(5) The trial judge erred in determining plaintiff to be totally and permanently disabled because the Louisiana Workmen’s Compensation Statute does not provide for total and permanent disability regarding persons who suffer hernias.

ERRORS NO. 1 AND 2

A workmen’s compensation claimant has the burden of proving by . a preponderance of the evidence that his disability is causally related to an accident that occurred during the course and scope of his employment and his testimony alone may be sufficient to prove the occurrence of a work-related accident, if such testimony is plausible, consistent and is supported by other circumstances appearing from the record. Crochet v. American Tobacco Company, 407 So.2d 1330 (La.App. 3d Cir.1981).

The trial judge obviously felt that the plaintiff met this burden of proof when considering all of the circumstances. Appellant argues, however, that plaintiff’s testimony is the only evidence supportive of his allegations of a work-related accident and that this testimony is weakened by the contradictory testimony of defense witnesses. We do not believe, as does appellant, that plaintiff’s testimony is the sole evidence upon which the trial judge based his judgment.

Plaintiff’s testimony of the work he performed that day is certainly consistent with the nature of injury he sustained, and there is ample evidence in the record demonstrating he did perform that work. Nothing in the testimony of the defense witnesses contradicts this.

From the moment plaintiff returned to the Harvey shop with the report of the first medical examination, SWACO had knowledge that there might have been something wrong with this man. Yet they hired him and placed him in a situation that would have certainly aggravated his condition. We agree with the trial judge that the only way they could have avoided liability was not to have hired plaintiff initially.

Thus, when considering plaintiff’s testimony, the medical evidence and the fact appellant had knowledge that there might have been an existing inguinal hernia, we cannot say the trial judge was manifestly erroneous in his conclusions.

ERROR NO. 3

The plaintiff testified he told Mr. Magee about his accident and the pain he was having, and Mr. Magee testified he did not. However, it appears from the record that the plaintiff did make at least a sufficient statement concerning what occurred on January 13, 1982 because Mr. Magee testified that in response to whatever plaintiff related to him he told plaintiff to take the medical card and seek medical advice.

As far as accident reports are concerned, Mr. Magee testified that either the manager or a supervisor would write out the report, not the employee. The absence of an accident report is not in any way evidence that plaintiff failed to report an accident; it only serves to prove that appellant failed to write out any statement made by plaintiff.

We agree with the trial court that because of Mr. Magee’s response to whatever statements plaintiff made to him, plaintiff sufficiently communicated that he had had ah accident with resulting injuries.

ERRORS NOS. 4 AND 5

Appellant concedes that plaintiff is “arguably totally and permanently disabled at the present time in view of restrictions placed upon him by his physician,” but contends that this disability cannot be permanent at this point.

Appellant then cites LSA-R.S. 23:1221 4(q)(iii) which would limit appellant’s liability to twenty-six weeks if plaintiff refuses to undergo surgery. Appellant states plaintiff would become totally disabled if some “unforeseen and improbable event occurred during surgery,” but not until then.

We, however, are not able to locate in the record a refusal by plaintiff to undergo surgery. Appellant terminated plaintiff shortly after plaintiff’s accident and has never tendered an offer of surgery. Plaintiff cannot refuse that which has not been offered.

The trial court was correct in concluding the plaintiff was permanently disabled because Dr. Kitahama testified that if plaintiff continued to work, his hernia could strangulate and kill him. This conclusion is not manifestly erroneous as plaintiff was never tendered an offer to have surgery and correct a problem that could be life threatening should plaintiff work.

Accordingly, for the above stated reasons, the judgment of the trial court is affirmed. Appellant is to pay costs of these proceedings.

AFFIRMED.