author: COVINGTON, Judge.

text:
    Georgiann L. GRACE, et al. v. BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES, et al.
    No. 83 CA 0145.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      J. Rodney Ryan, Baton Rouge, for plaintiffs-appellants Georgiann L. Grace and James B. Potts, Jr.
    Winston G. Decuir, Baton Rouge, for defendants-appellees Bd. of Trustees for State Colleges and Universities, Northeast La. University and Faculty Appeals Committee, Northeast La. University.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an action for “declaratory relief and stay of adjudication proceeding.” The parties are Georgiann L. Grace and James B. Potts, Jr., plaintiffs, and Board of Trustees for State Colleges and Universities, Northeast Louisiana University, defendants. The plaintiffs appeal a judgment granting the defendants’ motion for summary judgment and dismissing the plaintiffs’ suit, and denying motion for summary judgment filed by the plaintiffs. We affirm.

The present action arose as a result of faculty grievances filed by Georgiann L. Grace and James B. Potts, Jr. Neither grievance involved a matter of termination or tenure, but pertained to teaching assignments, leaves of absence, and merit raises.

Although not required to establish a faculty appeals procedure, or grievance process, Northeast Louisiana University has established such a procedure. Faculty members are thereby afforded a reasonable opportunity to discuss internal matters of which the faculty member feels aggrieved with department heads, deans, the vice president, and ultimately the grievance committee.

When Northeast Louisiana University refused to allow Grace and Potts to conduct “judicial type” evidentiary hearings at each stage of the grievance process, the faculty members sought a declaratory judgment, to require the university to apply the Administrative Procedure Act, LSA-R.S. 49:951 et seq., to their grievances. The trial court sustained the authority of the Board of Trustees for State Colleges and Universities to manage the internal affairs of the universities, and refused to apply the Administrative Procedure Act to faculty grievance proceedings such as those in which the plaintiffs are involved. The trial court found there was no dispute as to any of the material facts and rendered judgment in favor of the defendants.

The appellants contend that under the facts presented, the trial court erroneously concluded that hearings under the Northeast Louisiana University faculty appeals procedure were not required to be held in compliance with the Administrative Procedure Act; and further the trial court erroneously refused to recognize plaintiffs’ property rights or liberty interests cognizable under Article I, Section 2 of the Louisiana Constitution of 1974 and the Fourteenth Amendment of the United States Constitution. There is no contention that any of the facts are in dispute and we will consider the case to be in a proper posture for summary judgment.

SPECIFICATION OF ERROR NO. 1

Article VIII, Section 6 of the Louisiana Constitution of 1974 created the Board of Trustees for State Colleges and Universities, granting unqualified and exclusive powers of supervision and management to that board, as to the universities under its jurisdiction.

Prior to the effective date of the 1974 Constitution, Article XII, Section 7 of the 1921 Constitution vested the now abolished State Board of Education with the authority to supervise those higher educational institutions which were not supervised by the Louisiana State University Board of Supervisors. The powers of the State Board of Education were expressly limited in the 1921 Constitution as “subject to such laws as the Legislature may enact.” The Louisiana State University Board of Supervisors was under no such limitation, as the Louisiana Supreme Court recognized in Student Government Association of Louisiana State University, etc. v. Board of Supervisors, etc., 262 La. 849, 264 So.2d 916 (1972).

In equalizing the authority of the management boards, the 1974 Constitution in effect removed the Board of Trustees for State Colleges and Universities, in matters of supervision and management, from the restraints of legislative control. Thus, the authority of the management board was significantly increased under the 1974 Constitution.

In Board of Elementary and Secondary Education v. Nix, 347 So.2d 147, 152 (La.1977), the Court stated:

... [I]t is significant that the present board’s [BESE] powers of administrative supervision and control are expressly to be “as provided by law,” unlike those of other educational boards created by subsequent sections of Article 8. The powers of supervision and management granted three other educational boards over the state’s colleges and universities are not qualified in this manner, see Article 8, Sections 6 and 7. As to them, distinguishably from the present board, there is thus a constitutional intent to confer upon such other boards self-executing (i.e. enforceable without supplementary legislation) and exclusive administrative authority over the institutions of learning within their jurisdiction. (Emphasis added).

The grant of authority constitutionally vested in the management boards precludes the application of the Administrative Procedure Act to the Board of Trustees. This management board has authority to adopt rules and regulations governing the. internal management of the universities without legislative consent or approval.

In addition to the constitutional restrictions to the Administrative Procedure Act, the Act expressly excludes its application to matters such as faculty grievance proceedings. The Act provides regulations for both the rule making and administrative hearing of certain agencies. However, LSA-R.S. 49:951(6) excludes those agency rules promulgated for internal management. The statute provides in part:

(6) “Rule” means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency ... (Emphasis added).

A university grievance procedure, including for example such matters as teaching assignments, salary increases and use of faculty leave, are matters pertaining to the internal management of the university. Hence, the Act, by its own terms is inapplicable to faculty grievance procedures. In handling matters of internal management, a university is neither constitutionally nor statutorily required to provide a grievance hearing. When hearing is accorded a grievant, there is no requirement that the hearing be conducted in accordance with the Administrative Procedure Act.

An adjudication is defined in LSA-R.S. 49:951(1) as an “... agency process for the formulation of a decision or order.” Subsection (3) of LSA-R.S. 49:951 defines “decision” or “order” as:

... the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing...

The Court in Hagood v. Pickering, 385 So.2d 405, 408 (La.App. 1st Cir.1980); 392 So.2d 130 (La.App. 1st Cir.1980), writ denied 405 So.2d 532 (La.1981), examined the scope of LSA-R.S. 49:951 et seq. and concluded:

... the Administrative Procedures Act does not create an independent right to a hearing. It merely sets forth the procedures to be used if the agency is obligated to hold a hearing by constitution or another statute.

In the present case, the plaintiffs would interpret the university’s discretionary right to hold a hearing as a mandatory duty. There exists no legal basis for such interpretation. The fact that a university has instituted a grievance procedure does not necessarily mean that such an action was required. Such authority may be either discretionary or mandatory. Where the authority to conduct a hearing on internal management or operations is discretionary, the hearing does not constitute an adjudication and the Administrative Procedure Act, by its own terms is inapplicable. For general discussion, see Force-Griffith, The Louisiana Administrative Procedure Act, 42 La.L.Rev. 1227 (1982).

Since the university is not bound by the Act, due process need not be defined solely in terms of the Act. Due process is a flexible standard depending on the alleged deprivation. See Frumkin v. Board of Trustees, Kent State University, 626 F.2d 19 (6th Cir.1980).

In the present case, the grievants are offered a reasonably fair opportunity to discuss their purported grievances with their department head and the vice president of the university. In addition, they are able to present their grievances to a grievance committee. Due process is not offended by the university’s faculty appeals procedure. The plaintiffs have been provided a meaningful opportunity to be heard and to seek redress for any grievance they may have suffered.

SPECIFICATION OF ERROR NO. 2

The deprivation of property or liberty interests may, in some instances, require a hearing; however, there is no requirement that all hearings be conducted pursuant to the Administrative Procedure Act.

In the present case, as stated above, the university is not subject to the Act. Furthermore, the appellants have not been denied due process relative to their liberty or property interests.

Grace claims a deprivation of property interest based upon removal from a technical writing program. She has equated her eligibility to teach a certain class with entitlement to teach. As an untenured instructor, Grace has no constitutional right to determine which classes she will be assigned to teach. The university administration is responsible for making such decisions. The fact that an instructor seeks to attain the qualifications necessary to teach a course does not create a right to teach that course. As to salary adjustments, it is again within the sound discretion of the university officials to determine the amount of merit pay a faculty member will receive.

Dr. Potts alleges that he has been denied permission to travel for professional growth. A university is not required to permit its faculty members to travel whenever requested. Denial of such a benefit does not deprive the faculty member of any protected rights. The faculty member contracts with the university to teach courses for the academic year. Leave for travel is not a right. The University is not required to grant such a benefit. Furthermore, Dr. Potts did not set forth any facts which would show that he has been treated differently from other similarly situated professors with reference to travel.

The actual format for grievance hearings at N.L.U. was developed at the university level. The format shows that the grievant is allowed to have counsel present, to present evidence supporting the grievance, and to ask questions of opposing witnesses. We find that the grievants in the instant ease are afforded due process of law.

In Frumkin v. Board of Trustees, Kent State University, the Court noted, with reference to a faculty appeals hearing:

The judicial model of an evidentiary hearing is neither a required, nor even the most effective method of decision making in all circumstances ... All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard” (citation omitted) to insure that they are given a meaningful opportunity to present their case.

LSA-C.C.P. art. 966 provides that any party may move for a summary judgment. The mover is entitled to summary judgment in his favor “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Bacon v. Diamond Motors, Inc., 424 So.2d 1155 (La.App. 1st Cir.1982), writ denied 429 So.2d 131 (1983). In other words, a motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

For the reasons stated above, the trial court’s judgment granting defendants’ motion for summary judgment and denying the motion of the plaintiff’s is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    BRUMFIELD WRECKER SERV., INC., etc. v. CITY OF BATON ROUGE, et al.
    No. 83 CA 0146.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Philip Shaheen, Baton Rouge, for plaintiffs-appellants Brumfield Wrecker Service, Inc., etc.
    Caroline Norton, Asst. Parish Atty., Baton Rouge, for defendants-appellees City of Baton Rouge, et al.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs appeal the denial of a preliminary injunction prohibiting the defendants from re-advertising for wrecker-service bids in violation of the renewal provision of their agreements.

Each of the three plaintiffs has a separate contract with the City of Baton Rouge, the substance of which is identical. Thereunder, the parties stipulated the effective period of the agreement. They also provided that this contractual period could be extended “with an option to renew, by letter agreement, for two (2) additional years, on an annual basis.”

Relying on this provision, plaintiffs notified the City by individual letters that each wished to exercise his option to extend the contract for another year. The City responded, announcing it did not want to exercise said option and would re-advertise for bids in accordance with paragraph 15 of the SPECIAL INSTRUCTIONS FOR ANNUAL CONTRACTS. Subsequently, the City advised plaintiffs that it was terminating the agreements, as provided in paragraph 14 of the AGREEMENT. As a result thereof, plaintiffs petitioned for a Temporary Restraining Order and Rule for a Preliminary Injunction. Therein, they requested that the City be temporarily restrained from re-advertising for bids in contravention of their contracts and, further, to show cause why a preliminary injunction should not be issued in the same form and substance.

The trial court denied the temporary restraining order and, after a hearing, denied the preliminary injunction. It held that the parties’ written agreement evidenced an intent that both must consent to an extension of the agreement’s term. Therefore, it concluded that plaintiffs’ unilateral attempt to extend the agreement past the primary term was not valid until accepted by defendants. These conclusions were based primarily on paragraph 15 of the SPECIAL INSTRUCTIONS FOR ANNUAL CONTRACTS and the TERM provision in the NOTICE TO BIDDERS, SPECIAL CONDITIONS rather than paragraph 13 of the AGREEMENT which the trial court found to be “somewhat vague” on this matter.

On appeal, plaintiffs contend that the trial court erred in its interpretation of the contract. Plaintiffs maintain that under paragraph 13 of the AGREEMENT, they had a contractual option to extend the term of the contract unilaterally.

While we are not in accord with the trial court’s opinion that paragraph 13 of the AGREEMENT is “somewhat vague,” neither can we agree with plaintiffs’ interpretation of that paragraph.

One of the basic rules of contract interpretation is that all clauses of the agreement are to be interpreted in relation to each other, giving to each the sense that results from the entire act. L.S.A.-C.C. art. 1955.

Paragraph 13 of the AGREEMENT states that the parties understand the contract is in full force and effect for a certain time period with an option to renew, by letter agreement. Further, it provides that the party’s intent to exercise the option must be submitted by a written statement at least 30 days before the contract period ends. This language indicates that the written statement of intent merely expresses the party’s willingness to consent to an extension of the contract’s term, whereas, the letter agreement actually effectuates the extension of the contract’s term. The use of the word “agreement” therein to accomplish the extension of time indicates that it requires the consent of both parties. This interpretation is even more apparent when read with the contract’s following paragraph.

Paragraph 14 provides that either party has the right to terminate the agreement by giving written notice. This right to terminate the agreement invariably includes the right to terminate the option to renew. The fact that paragraph 14 grants either party this right supports the conclusion that both parties must agree to extend the contract’s term.

This interpretation is further substantiated by paragraph 15 of the SPECIAL INSTRUCTIONS FOR ANNUAL CONTRACTS which was made part of plaintiffs’ proposals pursuant to paragraph 16 thereof. Paragraph 15 provides, in pertinent part, that the contract term may be extended upon the approval and agreement of the contractor and the City-Parish Government. In addition, it requires re-advertising for bids if the contractor or the City-Parish Government does not desire to extend the contract. It is evident by the paragraph’s plain language that an extension of the contract’s term can be accomplished only with the consent of both parties.

The language in the TERM paragraph of the NOTICE TO BIDDERS, SPECIAL CONDITIONS is also clear on this point. It establishes that the contract is for a certain time period with an option to renew by letter agreement. Further, it specifies that the parties to the letter agreement be the contractor and the City of Baton Rouge, Parish of East Baton Rouge.

Taken as a whole, we agree with the trial court’s conclusion that it was the parties’ intention that both must consent to an extension of the contract’s term. Accordingly, we affirm the trial court’s judgment.

Judgment of the trial court is affirmed. Appellants are to pay all costs.

AFFIRMED.

      . Paragraph 13 of the written AGREEMENT between each plaintiff and the City of Baton Rouge states that:
      "It is further understood by and between the parties hereto that this agreement shall remain in full force and effect for a period of __ beginning midnight __ and ending midnight_ with an option to renew, by letter agreement, for two (2) additional years, on an annual basis. A written statement of intent to exercise the option to renew must be submitted at least thirty (30) days before the end of the contract period.”

      . We note that although defendants paraphrase the substance of paragraph 15 of the SPECIAL INSTRUCTIONS FOR ANNUAL CONTRACTS, its letters refer to this as paragraph 14. We believe this to be merely a typographical error, as paragraph 15 is the applicable paragraph to the argument advanced. It provides that:
      "The contract shall be firm through the period indicated on the reverse side of this page. Upon the approval and agreement of the contractor and the City-Parish Government it may be extended to a second or third year or other indicated time period. Extension of contract into the second or third time periods shall be made by letter on or before the expiration of the primary period. By written agreement of extension, contractor agrees to supply the items of the contract for the next period at the stated and established prices. Should the contractor or the City-Parish Government not desire to extend this contract, it shall be re-advertised. When different time periods are offered by bidders, this may be a consideration in award of the contract.”

      . Paragraph 14 of the AGREEMENT reads: "Either party to this agreement shall have the right to terminate the agreement by giving the other party written notice of termination in writing thirty (30) days prior to the date specified for termination of the agreement. In addition, should Contractor fail to refuse to comply with any of the provisions of this agreement, or any instructions of the City issued pursuant to this agreement or pursuant to the provisions contract, [sic] City shall have the right to terminate the agreement ipso facto and without putting Contractor in default. In the event of any such termination for cause, Contractor shall have no further rights under the provisions of this agreement. In the event of termination of this agreement for any reason, Contractor shall make a final report to City within thirty (30) days of the date of termination with respect to vehicles on hand as of the time of termination, said report to contain the information and be in the form prescribed in Paragraphs 5 and 9 hereof.”

      . The trial court relied on paragraph 13 of the SPECIAL INSTRUCTIONS FOR ANNUAL CONTRACTS set forth in Footnote 2, supra, and the TERM provision in the NOTICE TO BIDDERS, SPECIAL CONDITIONS, which provides:
      “This contract is for the period from midnight April 1, 1982 to midnight December 31, 1982 with option to renew for two (2) additional years by letter agreement with the contractor(s) and the City of Baton Rouge, Parish of East Baton Rouge, La.”


author: COLE, Judge.

text:
    Richard M. RICE and Suzanne Goodell Rice v. Robert Eugene LEE and Susan Day Lee.
    No. 83 CA 0147.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Tammeryn M. Smith, Baton Rouge, for plaintiffs-appellees Richard M. Rice and Suzanne Goodell Rice.
    Larry Book, Baton Rouge, for defendants-appellants Robert Eugene Lee and Susan Day Lee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

This is a redhibition suit in which plaintiffs, purchasers of defendants’ house, complain of a defective roof and a defective shower. The only issue is whether or not the defects were apparent so as to bar plaintiffs’ recovery under La. Civil Code art. 2521.

The basic facts are as follows: Plaintiffs Richard and Suzanne Rice purchased a home from defendants Robert and Susan Lee, in November of 1980. The home was about 26 years old and had a slate roof. Immediately after moving into the house the Rices discovered the shower was leaking to the extent that the wall of the adjacent bedroom was wet. Several months later the Rices discovered various serious leaks coming from the roof. Attempts at negotiations to remedy the problem were made between the parties but to no avail. The Rices filed suit, alleging the defects were so severe so as to allow them a rescission of the sale or alternatively, a reduction in the purchase price.

After a trial on the merits the trial court gave oral reasons for judgment wherein it found that since plaintiffs were aware the roof was apparently 26 years old, they had a duty to make "... at least, a cursory inspection of that house including that slate roof.” The court commented further:

“From the testimony of Mr. Chatelain and the other people who had an opportunity to inspect the damage to the roof, it is obvious to the Court that those things must have been apparent had anyone taken the care to look. Mr. Lee could not be charged with knowledge of the apparent defects in the roof, nor could Mr. Rice be completely exonerated from his obligation to make, at least, a cursory examination.”

The court concluded that in fairness to all parties it would take the middle estimate of the three given to repair the roof and divide that amount in two. The court then chose to take the highest estimate for the shower repair and divide that amount in two. Based on this method the court awarded the plaintiffs $2,876.50 for the roof and $350.00 for the shower. The court ordered the costs of trial be split by the parties. Defendants appealed, arguing the court erred in awarding damages in a case wherein it found the defects to be apparent.

We agree with appellants if the defects are found to be apparent, appellees are not entitled to recover for them. See La.Civ. Code art. 2521. We further agree with appellants the trial court did indicate, at least to some extent, it found the defects to have been apparent. After a careful examination of the record we conclude the court erred in characterizing the defects as apparent. We agree plaintiffs are entitled to recover and therefore affirm the judgment of the trial court, although we do so for different reasons.

The testimony of the Rices and several expert witnesses constitutes a preponderance of the evidence establishing the roof and the shower both leaked, with these defects manifesting themselves within a short time after the sale of the home. In fact, appellants do not contend the house did not contain the alleged defects, they argue simply that whatever defects may have existed were apparent and therefore appellees should be denied recovery.

We disagree with the trial court’s indication that the defects were apparent. Concerning the roof, although perhaps plaintiffs could or should have observed some broken shingles, this fact alone does not mean the roof contained an apparent defect. In Glynn v. Delcuze, 149 So.2d 667 (La.App. 4th Cir.1963), it was held even though the purchaser of a house was aware of broken shingles and failed to inspect the roof for leaks, the defect was not apparent. This was so because a simple inspection would not have revealed the true nature of the defect — that the roof was improperly constructed. We feel the facts of the present case are analogous to the Glynn case. Here the apparent cause of the leaks was the fact that the felt underneath the slate shingles was rotting. This fact would not be readily observable to the untrained eye. A simple inspection of the attic (which Mr. Rice testified he had performed) revealed no water damage. This was because “aluminum foil” insulating material covered the underside of the roof. It has been held there is no obligation on the part of the buyer to inspect with expertise or to “deface” the thing purchased while inspecting it, particularly when damage can be fully determined only by removal of the surface coverings. Fraser v. Ameling, 277 So.2d 633 (La.1973). Don Little, accepted by the court as an expert in general contracting, stated a person with an “untrained eye” would not have detected the roof problems by a simple inspection.

• Appellants argue since the Rices had knowledge of previous leaks, they were put on notice as to possible defects and therefore had a duty to investigate further. The record indicates Mr. Lee had informed the real estate agent of two previous leaks which had been fixed. The agent, Ms. St. Amant, testified she passed this information on to the Rices. Mr. Rice stated he had observed one water stain in the house and had been assured by Ms. St. Amant the leak had been repaired. However, in spite of this “notice” that leaks had existed at one time, we find the cases cited herein amply supports appellees’ argument they were under no extra duty to inspect the premises.

In Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir.1975), the purchaser was aware of leakage problems prior to the act of sale but was assured by the realtor the owner had replaced the roof. When leaks developed several months after the purchase, experts informed the purchaser that although the shingles had been replaced the problem was the “valleys” in the roof had not been replaced and were defective. This court held this was indeed a nonappar-ent defect so as to warrant a reduction in purchase price. The court noted even assuming the purchaser had been put on notice of previous leaks, “... the assurance of the owner and realtor that a new roof had been installed relieved them of the requirement to investigate further.”

In Garrett v. Gayle, 405 So.2d 622 (La.App. 3d Cir.1981), writ denied, 409 So.2d 669 (La.1982), the purchasers bought a house after noticing the roof contained curled shingles and rusting gutters. The trial court granted a summary judgment, denying plaintiffs’ recovery for the leaking roof, finding the defects were apparent and imposed upon them a duty to investigate further. The Third Circuit reversed the summary judgment, saying the curling shingles and rusting gutters were merely indicative of age and did not constitute a defect which would put the purchaser on notice he should inspect for leaks.

In Verlander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir.1977), writ denied, 353 So.2d 1037 (La.1978), the purchaser bought a 25 year old house with the original roof. The cause of the leak, as in the present case, was found to be the deteriorating felt. The court found in the purchaser’s favor when he sued for a reduction of price, concluding that in spite of the age of the roof, the purchaser had no reason to expect the roof to leak. See also, Hunter v. Wilson, 355 So.2d 39 (La.App. 3d Cir.1978), writ denied, 357 So.2d 1154 (La.1978).

In the present case photographs were introduced into evidence showing the water damage in the attic and showing the obviously rotten eaves of the house. However, we note these pictures were taken in June of 1982, more than a year and a half after the house was purchased. We simply can not assume the house looked the same in November of 1980 as it did in June of 1982.

Under these facts and considering the cited jurisprudence we conclude the defective roof was not apparent to the purchasers of the house. If the trial court concluded otherwise, it was in error.

Concerning the shower, the Rices testified they observed two tiles which had fallen from the lower part of the shower. They were assured the tiles would be replaced and stated they had no reason to suspect any further problems. Two witnesses at trial, Don Little, an expert in the field of general contracting, and S.C. Kennedy, an estimator for Defrances Marble & Tile Company, testified loose tiles have absolutely no bearing on a shower’s propensity to leak. The tiles are for cosmetic purposes only and it is what lays underneath the tiles — the concrete and the pan — that determine whether or not a shower will leak. Based upon these facts, we find the record clearly substantiates that the shower defects (i.e., the pan and subfloor concrete) were non-apparent. Accordingly, plaintiff is entitled to recover.

For these reasons, the judgment of the trial court granting recovery to plaintiffs is affirmed. Costs of this appeal are to be paid by appellants.

AFFIRMED.

      . Art. 2521 reads as follows: "Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

      . Although the court’s method for awarding damages is highly unusual plaintiffs did not appeal nor file an answer to the appeal. Therefore we will not disturb the amount of this award. See La.Code Civ.P. art. 2133.

      . Steve Creamer, accepted by the court as a roofing expert, testified he repaired a leak for the Lees in 1980. At that time he found evidence of rotten felt underneath the shingles.


text:
    Debra S. FROMENTHAL, Individually and As Tutrix of the Estate of her Minor Son, Thaddus Fromenthal v. Steve CLARK, Individually and as Administrator of the Estate of his Minor Child Shawn Clark, et al.
    No. 83 CA 0148.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Thomas L. Mahfouz and Nicholas LaRoc-ca, Lippman, Mahfouz, Martin, LaRoeca, Stansbury & Anten, Morgan City, for plaintiff.
    James B. Supple, Bauer, Darnall & Bou-dreaux, Franklin, for Steve Clark, et al.
    L. Albert Forrest, Roy, Forrest & Lo-presto, New Iberia, for Randy Hatler and State Farm.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Plaintiff, Debra S. Fromenthal, individually and as natural tutrix of the estate of her minor child, Thaddus Fromenthal, sued defendants, Steve Clark, individually and as administrator of the estate of his minor child, Shawn Clark, and Clark’s homeowners insurance carrier, United States Fidelity and Guaranty Company. Also named as defendants were Randy Hatler and his liability insurer, State Farm Fire and Casualty Company and/or State Farm General Insurance Company, seeking recovery for personal injuries sustained when Shawn Clark, age two years, allegedly severely bit the infant, Thaddus Fromenthal, while the infant was sleeping on a bed in Hatler’s home.

The issue presented for determination is whether a child below the age of discernment is liable for his tortious conduct. The trial court held that “the child, Shawn Clark, was below the age of discernment and reason and, therefore, cannot be held liable for his delictual acts, negligent or intentional, because he lacks the ability to be legally at fault.”

On November 4, 1980, Thaddus, a two weeks old infant, was severely bitten by Shawn while sleeping on a bed in the bedroom of the home of Randy Hatler, and allegedly sustained the injuries complained of.

It is established that a child of tender years is incapable of discerning the consequences of his actions and, therefore, cannot be held legally liable for acts under an objective standard designed for normal reasoning persons. Betbeze v. Cherokee National Insurance Co., 345 So.2d 577 (La.App. 4th Cir.1977), writ denied 349 So.2d 329 (La.1977); see also Turner v. Bucher, 308 So.2d 270 (La.1975), noted 49 Tul.L.Rev. 1194 (1975); Horn v. American Employers’ Insurance Company, 386 F.2d 360 (5th Cir.1967).

While Turner v. Bucher imputes the fault of the child too young to reason or have intellectual discernment to the father, it does not fix personal liability for delictual conduct on the minor or his estate. Turner places full responsibility and liability on the father for the torts of his infant child who lacks discernment. In such cases, the fact that the conduct is tortious when measured by normal standards is enough to impose liability on the father.

In Turner, id. at 277, the Court remarked:

We conclude that although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child’s act. This legal fault is determined without regard to whether the parent could or could not have prevented the act of the child, i.e., without regard to the parent’s negligence. It is legally imposed strict liability. This liability may be escaped when a parent shows the harm was caused by the fault of the victim, by the fault of a third person, or by a fortuitous event. (Emphasis added).

Under the explicit provisions of LSA-C.C.P. arts. 966 and 967, the court below correctly rendered judgment in favor of the estate of the minor because there was no genuine issue as to material fact and this defendant was entitled to judgment as a matter of law, as discussed above. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Bouffanie v. Cheramie, 417 So.2d 32 (La.App. 1st Cir.1982).

In so ruling we in no way limit the plaintiff’s right to offer evidence to prove the incident giving rise to the injuries sustained by the infant Fromenthal. Our holding means only that the law at present does not permit suit to be maintained against a child below the age of discernment to recover damages arising out of the tortious activity of such child. The vicarious liability of the father in such case is in no way diminished by our decision. LSA-C.C. art. 237, LSA-C.C. art. 2318; Turner v. Bucher.

We affirm at appellant’s costs.

AFFIRMED.


text:
    William G. CORBELLO, et al. v. R.T. SUTTON, Commissioner of Conservation, State of Louisiana.
    No. 83 CA 0150.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Thomas Bergstedt, Lake Charles, for plaintiffs-appellants William Garland Cor-bello, Sheila Corbello, Wilton Corbello and Ruby Corbello.
    John M. McCollam, New Orleans, for in-tervenor-appellee Toce Oil Co.
    Viel David Devillier, Eunice, for defendant-appellee R.T. Sutton, Com’r of Conservation.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs, William G. Corbello (Corbello) and others, owners of 120 acres of land and minerals included in Unit 252-A Calcasieu Parish (252-A), created by the Commissioner of Conservation, State of Louisiana (Commissioner), effective September 1, 1954, for the Pujol Sand in the Gillis-Bayou English Field, Calcasieu Parish, nominated the Pujol Unit No. 1 (Pujol 1) seek review of the trial court’s determination that Commissioner Order entitled “Supplement to Order 252-A” (Supplemental Order), which dissolved Pujol 1 effective April 21, 1978, and Commissioner Order 252-A-l rendered February 11, 1981, effective December 1, 1981, recreating 252-A with the exception of a large portion of plaintiffs’ property are valid. Review is sought pursuant to L.S. A.-R.S. 49:964 and, alternatively, L.S.A.R.S. 30:12.

In 1954, Unit 252-A was created, initially producing in paying quantities. Eventually, production declined and the well was abandoned in 1963. In the late 1970’s, Lamson/Onshore and Toce Oil Company (Lamson-Toce) sought a block of leases in the abandoned unit. In doing so, they attempted to lease Corbello’s 120 acres in Unit 252-A but were unsuccessful due to his insistence that an additional 80 acres of his personally owned property also be leased.

After acquiring leases from the original Unit 252-A land-owners, save Corbello, Lamson-Toce made application to the Commissioner for dissolution of Unit 252-A pursuant to L.S.A.-R.S. 30:9.1 B. The dissolution was granted by Supplemental Order 252-A, made effective April 21, 1978. Such Order was recorded in the Conveyance Records of Calcasieu Parish on May 1, 1978, pursuant to L.S.A.-R.S. 30:9.1 E.

When Lamson-Toce brought in a successful well, denominated the Toce-Albert Pujol Well No. 1 (Toce 1), in March, 1980, the previously secured leases were then combined into a new voluntary unit following the land lines leased by Lamson-Toce. Toce 1 is located approximately 600 feet from the property of Corbello.

Upon this discovery, Corbello, who had previously leased his lands to Daniel Oil Company (Daniel), called upon Daniel, as per their lease agreement, to request a public hearing by the Commissioner. Cor-bello wanted the Commissioner to consider the necessity and/or propriety of forming a compulsory Unit for Toce 1. Such hearing was held on December 12, 1980, after which the Commissioner issued Order 252-A-l, dated February 11, 1981, effective December 12, 1980. Such Order created a Unit which did not conform to the configuration urged by either Lamson-Toce or Daniel but which included four acres of Corbello’s acreage. Subsequently, this Order was amended on March 2, 1981, but with no substantive changes. Plaintiffs filed suit on August 28, 1981.

Defendants filed numerous exceptions, all of which have been disposed of by prior judgments, save the exception of laches. This exception was referred to the merits. Trial was had on both the exception and plaintiffs’ constitutional violation of due process claim. After trial on both of these issues, the trial court determined that plaintiffs’ claims were barred by laches and, for this reason, did not determine the constitutional issues.

Plaintiffs assert that the trial court erred in (1) holding that this suit was barred by the doctrine of laches, and (2) not addressing the merits of the plaintiffs’ constitutional claim.

LACHES

We find that the excellent opinion of the trial court amply addresses plaintiffs’ first assignment of error. We adopt in toto the trial court’s judgment, a copy of which is attached hereto, labeled EXHIBIT 1. Accordingly, we find plaintiffs’ first assignment of error to be without merit.

DUE PROCESS

Plaintiffs assert that they are entitled to judgment on the merits and ask that Order No. 252-A-l be set aside. This assignment of error has a two-prong attack. First, plaintiffs contend that the Supplemental Order was improvidently issued by failing to give proper notice. Second, they contend that L.S.A.-R.S. 30:9.1 violates the principle of counter drainage and, as such, allows the taking of property without due process or just compensation in violation of both the state and federal constitutions.

Plaintiffs’ first assertion that they were not given proper notice of the Commissioner’s intent to dissolve the original Unit is unsupported by the record. The record clearly indicates, as noted in the trial court’s written reasons for judgment, that plaintiffs had both actual and constructive notice of dissolution of the Unit. See EXHIBIT 1. As such, their contention of inadequate notice is totally without merit.

Secondly, they assert that L.S.A.-R.S. 30:9 mandates that the principle of counter drainage is constitutionally required. We agree. However, simply put, plaintiffs contend that the Commissioner should not and cannot construe L.S.A.-R.S. 30:9.1 F as giving him the authority to create new units from a previously unitized sand utilizing the current productive limits of the reservoir as the new unit boundaries. Plaintiffs contend this violates due process.

It is well settled that the initial requirement in any due process claim is that the claimant show the existence of some property or liberty interests which have been adversely affected. Delta Bank & Trust Company v. Lassiter, 383 So.2d 330 (La.1980). L.S.A.-R.S. 31:6 expressly articulates that the ownership of land does not include the ownership of oil, gas and other fugacious minerals occurring in their natural state in a subsurface reservoir. Accordingly, plaintiffs have no property interest in the alleged minerals until they are captured. Once captured, the minerals are susceptible of private ownership and provide a cause of action if they are lost. To prevent an abuse of the rule of capture and wasteful drilling, Louisiana adopted the concept of forced or compulsory pooling. See L.S.A.-R.S. 30:1 et seq. and, in particular, L.S.A.-R.S. 30:9 B. This concept requires that all persons in the “pool” of gas, oil or other fugacious minerals share in its production.

However, in the instant case, geological surveys submitted in the record fail to substantiate that plaintiffs’ property is in the “pool” being drained by the Toce 1 well. Accordingly, plaintiffs’ due process claim is totally without merit. Further, any contention that plaintiffs have not had their “day in court” as required by due process is also without merit.

The record clearly shows that plaintiffs challenged the dissolution of Unit 252-A in a hearing before the Commissioner in December, 1980. They further asked that the newly formed unit be modified or reformed to include plaintiffs’ property. This same evidence was presented to the trial court in the trial de novo. We find that the plaintiffs have not been denied due process.

For the above and foregoing reasons, judgment of the trial court is hereby affirmed. Plaintiffs are to pay all costs.

AFFIRMED.

EXHIBIT 1

JUDGMENT

William G. Corbello (Corbello) and others, owners of 120 acres of land and minerals included in Unit 252-A Calcasieu Parish, (252-A), created by the Commissioner of Conservation, State of Louisiana, (Commissioner), effective September 1, 1954, for the Pujol Sand in the Gillis-Bayou English Field, Calcasieu Parish, denominated the Pujol Unit No. 1 (Pujol 1), bring this action for review of Commissioner Order entitled “Supplement to Order 252-A” (Supplemental Order), which dissolved Pujol 1 effective April 21, 1978, and also for review of Commissioner Order 252-A-l rendered February 11, 1981, effective December 1, 1980, recreating 252-A by deleting therefrom all except a small fraction of plaintiffs’ holdings. Review is sought pursuant to LSA-R.S. 49:964 and, alternatively LSA-R.S. 30:12.

Defendants filed numerous exceptions including prescription and laches all of which, except laches, have been disposed of by prior judgments rendered herein. In accord with the jurisprudence the court referred the plea of laches to the merits. After trial, the matter is now before the court on the plea of laches and the merits.

FACTUAL BACKGROUND

As initially constituted in 1954, 252-A included 120 acres belonging to plaintiffs. The unit well produced in paying quantities for a time but production declined and the unit well was abandoned by its operator Chevron, in 1963. The unit continued in existence and in 1979 plaintiff William G. Corbello and his spouse purchased all outstanding surface rights and most of the outstanding mineral rights in the Corbello 120 acres in Unit 252-A. The purchases were made pursuant to formal title opinion based on examination of the public records of Calcasieu Parish.

In the late 1970’s, Lamson/Onshore and Toce Oil Company (Lamson-Toce) began accumulation of a block of leases in the abandoned unit. Lamson-Toce attempted to lease the Corbello 120 acres in the old unit but was unsuccessful because Corbello insisted an additional 80 acres of his personally owned property be also leased. Cor-bello then leased his lands to Daniel Oil Company (Daniel).

After acquiring leases from owners of all lands in original Unit 252-A, except Corbel-lo, Lamson-Toce made application to the Commissioner for dissolution of 252-A pursuant to LSA-R.S. 30:9.1 (Act 671 of 1975). The requested dissolution was granted by the Commissioner by Supplemental Order 252-A, made effective April 21, 1978. Pursuant to LSA-R.S. 30:9.1 E, Supplemental Order 252-A was recorded in the Conveyance Records of Calcasieu Parish on May 1, 1978.

In March, 1980, Lamson-Toce brought in a successful well which was denominated the Toce-Albert Pujol Well No. 1 (Toce 1). Lamson-Toce then combined its leases into a new voluntary unit which followed the lines of the lands leased by Lamson-Toce. The well is located approximately 600 feet from the property of Corbello.

Upon successful completion of Toce 1, Corbello’s lessee, Daniel, requested the Commissioner to hold a public hearing to consider the necessity and/or propriety of forming a compulsory unit for Toce-1. On December 12, 1980, the Commissioner held a hearing to consider a unitization proposed by Daniel, which proposal was opposed by Lamson-Toce. After hearing, the Commissioner issued Order 252-A-l, dated February 11, 1981, effective December 12, 1980, creating a unit which did not conform to the configuration urged by either Lamson-Toce or Daniel. In effect the Commissioner recreated 252-A excluding therefrom all but four of Corbello’s acreage lying along the northern boundary of the unit. On March 2, 1981, the Commissioner amended 252-A-l but made no substantive changes therein. The amendment merely corrected the legend regarding the scale of the map on which the unit was designated and an inadvertent error in designating the parish in which the properties are located.

Plaintiffs filed this action August 28, 1981.

THE ISSUES

Basically this action tests and questions the Commissioner’s interpretation, application and administration of LSA-R.S. 30:9.1, enacted by Act 671 of 1975, effective February-4, 1976. The statute provides for the expeditious termination of production units, as follows:

§ 9.1 Termination of units; conditions; procedure; Issuance or orders
A. Any unit or units established pursuant to the authority contained in this Chapter, shall unless sooner terminated, extended or otherwise modified by order of the commissioner, remain in full force and effect so long as:
(1) a well is producing from the pool for which the unit or units were established;
(2) a well is completed in the pool for which the unit or units were established and, although not producing, has been proved to be capable of producing;
(3) drilling, reworking, recompletion, plugging back or deepening operations are being conducted on a well to secure or restore production from the pool for which the unit or units were established; or
B. If a period of one year and ninety days elapses without the occurrence of any of the conditions specified in Paragraphs (1), (2), or (3), of Subsection A of this Section, upon application being made therefor, the commissioner may, by order issued after ten days legal notice, and without the necessity of a public hearing in the absence of objection, terminate all units within the pool.
C. The commissioner shall prescribe, issue, amend, and rescind such orders, rules and regulations as he may find necessary or appropriate to carry out the provisions of this Section. Among other things, such orders, rules and regulations shall prescribe the form and substance of the application for unit termination, and all statements, declarations, and supporting evidence to be filed therewith.
D. The provisions of this Section are intended to and shall affect presently existing units; however, in those instances where more than one year and ninety days have elapsed prior to the effective date of this Section without any of the conditions specified in Paragraphs (1), (2), or (3) of Subsection A of this Section having occurred, such unit or units shall not be subject to termination hereunder until an additional period of ninety days has elapsed after the effective date of this Section without any of the said conditions having occurred.
E. Any order issued pursuant to this Section shall be filed for record as provided in Section 11.1 of this Title.
F. Any future wells completed within the boundaries of any unit or units terminated pursuant to this Section shall, upon a new unit application being made to the commissioner, be entitled to a unit hearing as otherwise provided for by law as fully as though the original unit or units had never been created, and any such new unit or units shall not be limited in any way by the prior hearing or pre-ex-isting unit or units.
G. No provision of this Section shall be construed so as to in any way limit the authority otherwise granted to the commissioner to terminate, extend, or otherwise granted to the commissioner to terminate, extend, or otherwise modify any unit or units. Added by Acts 1975, No. 671, § 1.

Plaintiffs concede that 30:9.1 can be constitutionally interpreted, administered and applied if properly supplemented by Commissioner Order. It is contended, however, that 29-L and the Commissioner’s administration thereof does not fulfill the mandate of 30:9.1(C) that ten days legal notice of application to dissolve shall be given. Plaintiffs claim this deficiency resulted in their not having been given notice of the application to dissolve. They argue, consequently they were deprived of their property without due process of law contrary to La. Const.1974, Article 1, Section 2.

Plaintiff next contend a denial of due process resulted from the Commissioner’s granting an allowable for Toce 1 from a voluntary unit without a prior hearing. It is argued that 30:9.1 contemplates a hearing to determine boundaries of new units and 29-L fails to prescribe adequate regulatory provisions and methods by which units are re-created upon production being restored from the pool in the terminated unit.

Lastly, plaintiffs contend that 29-L as interpreted and enforced by 252-A-l deprives them of their property without just compensation contrary to La. Const.1974, Article 1, Section 4, in that their property which admittedly contributed to the initial unit is denied participation in the re-established unit. It is argued that, as a matter of law, plaintiffs’ lands should be included in the new unit absent a present showing that their lands did not contribute to past production and therefore should not have been included in the original unit.

LACHES

Our jurisprudence is well established to the effect that a plea of laches requires proof on the part of the pleader of two essential elements. First it must be shown that there was an unreasonable delay on the part of plaintiff in filing the action. Second, the pleader must establish that the delay has resulted or will result in harm, loss or detriment to a defendant or third party. Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir.1981).

Delay alone is insufficient to support a plea of laches. The rule is stated in Triangle Oil Co. v. City of New Orleans, 5 So.2d 558 (Orleans App.1942), as follows:

“In constituting a defense, the doctrine of lack of viligance is based on, and in part resides in, the injury which might be occasioned, the injustice that might result from the enforcement of long neglected rights, the difficulty and in many instances the impossibility, of ascertaining the truth of matters in controversy and doing justice between the parties, and in part on grounds of public policy, its aim being the discouragement, for the peace and repose of society, of stale and antiquated demands. It is equally well recognized, however, that the doctrine cannot be invoked to defeat justice and will be applied only where the enforcement of the right asserted would work injustice.”

Lamson-Toce began drilling its well on November 11,1978; it was completed January 11, 1979, and began production of 2MCF on March 28, 1979. Drilling costs were incurred in the sum of $1,200,000.00. In 1980, Lamson-Toce drilled a second well in the recreated unit at a cost of $660,-000.00 which well was nonproductive. Additionally, Lamson-Toce expended $37,-500.00 for a survey, abstracts, title examinations and curative work in conjunction with its voluntary unit. Also relying on the assumed valid dissolution of 252-A, Lamson-Toce paid royalties and working interests and incurred hereinafter itemized expenses.

LSA-R.S. 30:9.1, Paragraph B authorizes the Commissioner to dissolve a unit without a hearing after ten days legal notice having been given and no opposition having been made. Order 29-L-l e, requires that a list of interested owners and represented parties to whom notice has been sent shall accompany the application to dissolve. Paragraph 5 of 29-L defines interested owner as one known to applicant after diligent search.

Corbello denies receipt of notice of application to dissolve 252-A. The list of owners submitted with the application to dissolve was prepared by Larry Blanchard, a representative of Lamson-Toce. Blanchard admits he compiled the list by reference to the Commissioner's file on the hearing when the original unit was created. The file contained two lists, one dated 1953, the other 1963. Blanchard combined the two lists, eliminated duplications and thus produced a composite list. He supplemented the list with names obtained from his efforts to lease properties in the subsequently created unit prior to making the application for dissolution. It is conceded that Corbello’s name was not on the list of interested parties to whom notice of the application to dissolve was sent.

Although the record is clear that Corbel-lo did not receive official notice of the application to dissolve 252-A, the record preponderates heavily in favor of the conclusion that he had actual notice of the application within a relatively short time after the application was filed.

Corbello was most knowledgeable in matters involving oil and gas. His father owned mineral interests which Corbello inherited in part. Corbello had numerous mineral transactions of his own and, in addition, supervised the family’s holdings following the father’s death in 1968. Cor-bello’s father, F. Jefferson Corbello, owned an interest in 252-A. Notice of the application for dissolution was mailed to the elder Corbello at his then address. At this time Corbello lived next door to his father and shared the same mailbox on a rural route. Corbello also acknowledged that following his father’s demise, his mother consulted him regularly concerning family business matters. Four members of the Corbello family, including Wilton Corbello, received notices of the application for dissolution. Wilton Corbello testified that in matters concerning the family property he consulted with F. Jefferson Corbello while he was alive and after his death he consulted with plaintiff, William G. Corbello. Order 252-A was duly recorded in the Conveyance Records of Calcasieu Parish on May 1, 1978.

In June, 1980, Corbello contacted Daniel and negotiated a lease of his land which provided for a 20% royalty plus a 20% override for Corbello. As part of the agreement, Daniel obligated itself to file proceedings with the commissioner to in-elude Corbello’s lands in a unit to be served by Toce-Pujol-1. Corbello acknowledges he did not deem it advisable to personally file the application because he feared having to pay his proportionate part of production costs if he were successful; while Daniel, as lessee, would not run such a risk.

The agreement that Daniel would file application to have Corbello’s lands included in a unit to be served by the Toce-Pu-jol-1 Well, rather than bring action against the Commissioner was based on Daniel’s reluctance to sue the Commissioner directly. Daniel’s agents and attorneys were loath to sue the Commissioner for fear that such action would prejudice the Commissioner in future actions by Daniel before the Commissioner.

In September, 1980, Daniel, as Corbello’s lessee, made application to have the Corbel-lo lands included in a unit to be served by the Toce-Pujol-1 Well. Pursuant to applicable statutory requirements, a pre-application conference was scheduled and held by Daniel in Lafayette, Louisiana, on October 8, 1980, to discuss Daniel’s proposal. Prior to and at the conference, attended by Cor-bello, Daniel’s representatives discussed and considered the possibility of proceeding with its unit application before seeking annulment of Supplemental Order 252-A. Later, on October 13, 1980, Daniel requested a public hearing on its proposed unit application, which hearing was scheduled by the Commissioner for December 18, 1980.

On December 1, 1980 Lamson-Toce duly notified all interested parties, including the Corbellos, that Lamson-Toce considered Daniel’s application in violation of Order 29-L and state laws governing such applications. It was and is Lamson-Toce’s position that no change could be made so long as Supplemental Order 252-A was effective and that the order was effective until annulled by the Commissioner. Nevertheless, Daniel .pursued its unitization request in preference to seeking judicial review of Supplemental Order 252-A.

The hearing requested by Daniel was held by the Commissioner on December 18, 1980, as scheduled. Corbello attended and participated in the hearing. Lamson-Toce also appeared and opposed Daniel’s requested unitization. Both Daniel and Lam-son-Toce introduced testimony and geological evidence and data in support of their respective positions. The Commissioner took the matter under advisement.

On February 11, 1981, the Commissioner issued Order 252-A-l, effective December 18, 1980, creating a new single unit which includes portions of the three prior Pujol Sand Units that the Commissioner found productive on December 18, 1980. The Commissioner’s configuration did not conform to the unitization proposed by either Daniel or Lamson-Toce, rather, it was based on the Commissioner’s staff’s independent analysis of all available data. On March 2, 1981, the Commissioner made the hereinablve [hereinabove] mentioned non-substantive changes in Order 252-A-l.

Although Corbello was present at the December 18, 1980 hearing and signed an attendance card, he denied having received notice of the Commissioner’s resulting orders. The record shows, however, that notice of the orders were sent to all attending persons who signed attendance cards.

During and immediately following the December 18, 1980 hearing, Corbello made known to Daniel’s agents that Corbello felt the matter was not going well insofar as Corbello’s interests were concerned. He also suggested at these times that he felt some plan of action should be adopted to obviate the effect of what Corbello felt would be an unfavorable ruling. Following rendition of Order 252-A-l on February 11, 1981, Corbello and agents of Daniel, immediately commenced prolonged, exhaustive and detailed discussion concerning the most suitable method of challenging Supplemental Order 252-A as being invalid and contesting Order 252-A-l on the ground that its recreation of Unit 252-A violated Corbello’s vested interests.

Again, Daniel was reluctant to sue the Commissioner. Corbello insisted that his lessee Daniel take some action and that costs of the proposed litigation be borne by Daniel. After numerous meetings and telephone conferences between Corbello and representatives of Daniel, it was decided that suit would be brought in Corbello’s name to challenge Orders 252-A and 252-A-l and that Daniel would underwrite the cost of the action.

Order 252-A-l was recorded in the records of Calcasieu Parish on February 27, 1981. A non-substantive correction of Order 252-A-l was recorded in Calcasieu Parish March 16, 1981. Suit was filed August 31, 1981, more than six and one-half months folowoing [following] the February 11, 1981 rendition of Order 252-A-l.

Corbello’s alleged lack of notice of Order 252-A addresses itself to two issues. First, the alleged nullity of Order 252-A for lack of notice and knowledge of Order 252-A as regards the defendants’ plea of laches, that is commencement of running of the time for filing suit.

Laches is an equitable doctrine governing prescription of actions in those instances where the law does not provide a specific statutory limitation. Jordon [Jordan] v. Sutton, above.

Generally prescriptive statutes are strictly construed and any ambiguity is resolved against prescription and in favor of allowing the action to be brought to the end that a litigant may be afforded his day in court. State Ex Rel Guste v. Simoni, Heck and Associates, La., 331 So.2d 478 (1976).

As regards administrative review, however, the rule is that stability of orderly fiscal and administrative processes requires that review or appeal of such orders and decrees be commenced with all due diligence and speed. Stansbury v. City of Opelousas, 341 So.2d [33] 35 (La.App. 3d Cir.1976).

Legislative recognition of the need for early finality of administrative orders and decrees has been made evident in numerous instances wherein the legislature has consistently prescribed short periods in which such decrees and orders may be challenged judicially. For example, LSA-R.S. 49:964 B, applicable to administrative orders in general (including orders of the Commissioner) prescribes a 30 day period for application for review. Similarly, 30 day review application periods are provided for orders of the Civil Service Commission, La. Const.1974, Article X, Section 10; the Louisiana Tax Commission (Property Tax Assessments) LSA-R.S. 47:1857, 1858; Louisiana Commission on Governmental Ethics, LSA-R.S. 42:1142, and; the Louisiana Department of Public Safety, LSA-R.S. 32:414 and 668. A 20 day limitation applies to applications for review of decisions of the Commissioner of Agriculture, LSA-R.S. 40:931.16. Orders of the Board of Review, Office of Employment Security, must be reviewed in 15 days, LSA-R.S. 23:160, and those of the Louisiana Office of Employment Security must be reviewed within 10 days, LSA-R.S. 23:1728.

It is patent on the record that plaintiffs’ application for review in this instance has prescribed pursuant to LSA-R.S. 49:964 B, which provides that such applications must be made within 30 days of the order questioned. Plaintiffs’ alternative position is that the application is timely pursuant to LSA-R.S. 30:12 which expressly applies to Commissioner orders and which prescribes no specific period for making an application for review.

Applying the doctrine of laches applicable to a plea of prescription made pursuant to 30:12 above, the Court finds that plaintiffs’ claims are barred by laches.

Plaintiffs had constructive knowledge of Order 252-A as of May 1, 1978, on which date the order was duly recorded in the Conveyance Records of Calcasieu Parish.

The record preponderates heavily in favor of the conclusion that Corbello had actual notice of 252-A upon its rendition in 1978. It is shown beyond the shadow of a doubt that Corbello had actual notice of 252-A in June of 1980, at least 14 months prior to seeking review. By participating in the hearing held December 18, 1980, to reconstruct unit 252-A plaintiffs at least tacitly accepted and recognized the validity of 252-A considering the application for reconstruction presumed the validity of that order. In so doing, plaintiffs took a deliberate, calculated risk which ultimately redounded to their disadvantage. Since the doctrine of laches is based on equitable principles, it is appropriate to note the well established rule that he who seeks equity must do equity and apply with clean hands.

Regarding Order 252-A-l, plaintiffs delayed from February 11, 1981, to August 31, 1981, to seek review. The corrective order of March 2, 1981, is an inoperative factor' in that it made no substantive change in original Order 252-A-l. The delay of six and one-half months due primarily to Daniel’s reluctance to sue the Commissioner for fear of retaliatory reaction by the Commissioner in future actions, and to Corbello’s attempts to persuade Daniel to file the action and underwrite the cost thereof, were motives which cannot equitably support their failure to seek a more timely review.

Daniels’ aversion to filing suit on the ground it might prejudice the Commissioner against them is a sad commentary on the esteem accorded those in charge of administering our laws. This court finds such an alibi totally unacceptable as an insult to the integrity of public officials and cannot conceive such a premise as the basis for equitable relief.

The Court concludes, therefore, that insofar as time is a factor incident to a plea of laches, this action was brought untimely.

That Lamson-Toce and defendants would sustain material injury and loss if their plea of laches were denied, is amply supported by the evidence. In addition to the cost of drilling Toce-Pujol, a second well was drilled at a cost of $660,000.00 and which proved unproductive. This well would not have been drilled except for reliance upon the dissolution order. From initial production until December 18, 1980, Lamson-Toce paid royalties of $369,000.00 and working interest proceeds in the sum of $1,478,000.00 in reliance on the validity of the voluntary unit. Subsequent to December 18, 1980, survey and other costs, hereinabove mentioned, were incurred. Between December 18, 1980 and the filing of suit herein, royalties in the amount of $415,517.00 and working interests totalling $1,662,000.00 have been paid to interested parties, also in reliance upon the validity of 252-A-l. Payments of royalties and working interests have continued since institution of this action.

Assuming, arguendo, plaintiffs were successful herein, plaintiffs can reap no meaningful relief unless the distributions by Lamson-Toce were rescinded and revised distributions ordered based on the configuration of original unit 252-A which included plaintiffs’ lands. This would cause a hardship on all parties interested. Significantly, Lamson-Toce, has no assurance it can recoup funds paid to royalty owners and working interests predicated upon assumed validity of 252-A.

As concerns the Commissioner’s interest herein, LSA-R.S. 30:12, contains unmistakable evidence of legislative intent that matters before the Commissioner be expeditiously heard and finalized. This is necessarily so because the decisions of the Commissioner have tremendous effect on the decisions of explorers and drillers for oil and gas, which decisions normally involve considerable capital investment and property values of substantial proportions. The dependence of our economy for continued adequate production of oil and gas as sources of energy for heat, light and industrial power, as well as our armed forces reliance thereon for purposes of national defense, undoubtedly played some part in the legislative determination that Commissioner orders achieve rapid finality. Inordinate delays in this area could only discourage and deter efforts to explore for and produce vitally needed oil and gas because of industry reluctance to proceed upon Commissioner orders the finality of which could not be ascertained within a reasonable time.

- Defendants importune the Court to fix 60 days as the time in which actions may be brought against the Commissioner pursuant to LSA-R.S. 30:12. They so urge on the ground that said period is reasonable and accords with the longest statutory appeal period of 60 days for taking a devolu-tive appeal from final judgments in general. LA-C.C.P. Article 2087.

Since laches depends upon equitable principles, the court cannot logically and practically prescribe a precise period of time in such matters. Each case must obviously be determined on the facts involved. The court has searched the jurisprudence and found no case where a case has been barred by laches and the court has found the action should have been brought within a certain specified time. In each such instance the court has merely held the delay was unreasonable. See for example, Albritton v. Union Parish School Board, 307 So.2d 675 [676] (La.App. 2nd Cir.1975); Stansbury v. City of Opelousas, 341 So.2d 33 (La.App. 3d Cir.1976); State v. Orleans Parish School Board, 189 La. 488 [502], 179 So. 830 [834] (1938); State ex rel Calamari v. Orleans Parish School Board, 189 La. 488, 179 So. 834 [830]; Fontenot v. Evangeline Parish School Board, 185 So. 104 (La.App.)

In disposing of a plea of laches the sole function of the court is to determine whether there was unreasonable delay in bringing the demand and whether or not injury resulted or would result from allowing the suit. The fixing of a prescribed time for bringing an action is peculiarly and exclusively within the control and authority of the legislature. The court therefore declines to set a precise time for bringing an action pursuant to LSA-R.S. 30:12 and simply holds that in this action plaintiffs’ claims are barred by laches.

In view of the court’s determination of the plea of laches the court does not reach the merits of plaintiffs’ claim.

For reasons hereinabove set forth:

IT IS ORDERED, ADJUDGED AND DECREED that judgment be and is hereby rendered herein in favor of defendants, Commissioner of Conservation, and others, and against plaintiffs, William G. Corbello, and others, sustaining defendants’ plea of laches and dismissing plaintiffs’ action, with prejudice; all costs of this suit to be paid by plaintiffs.

JUDGMENT READ, RENDERED AND SIGNED in Open Court at Baton Rouge, Louisiana, this 15th day of December, 1982.

      . L.S.A.-R.S. 49:964, Judicial review of adjudication, as cited in pertinent part, provides that:
      ******
      "A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
      "B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record."

      . L.S.A.-R.S. 30:12, Court review and injunction; venue; procedure; burden of proof, provides, in pertinent part, that:
      "An interested person adversely affected by any law of this state with respect to conservation of oil or gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the commissioner hereunder, or by an act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the commissioner as defendant. Suit shall be instituted in the district court of the parish in which the principal office of the commissioner is located and shall be tried sum-marily_”

      . See the particular subsection noted in the text of this opinion.
      "9.1. Termination of units; conditions; procedure; issuance of orders
      "A. Any unit or units established pursuant to the authority contained in this Chapter, shall unless sooner terminated, extended or otherwise modified by order of the commissioner, remain in full force and effect so long as:
      “(1) a well is producing from the pool for which the unit or units were established;
      "(2) a well is completed in the pool for which the unit or units were established and, although not producing, has been proved to be capable of producing;
      "(3) drilling, reworking, recompletion, plugging back or deepening operations are being conducted on a well to secure or restore production from the pool for which the unit or units were established; or
      "B. If a period of one year and ninety days elapses without the occurrence of any of the conditions specified in Paragraphs (1), (2), or (3), of Subsection A of this Section, upon application being made therefor, the commissioner may, by order issued after ten days legal notice, and without the necessity of a public hearing in the absence of objection, terminate all units within the pool.
      "C. The commissioner shall prescribe, issue, amend, and rescind such orders, rules and regulations as he may find necessary or appropriate to carry out the provisions of this Section. Among other things, such orders, rules, and regulations shall prescribe the form and substance of the application for unit termination, and all statements, declarations, and supporting evidence to be filed therewith.
      "D. The provisions of this Section are intended to and shall affect presently existing units; however, in those instances where more than one year and ninety days have elapsed prior to the effective date of this Section without any of the conditions specified in Paragraphs (1), (2), or (3) of Subsection A of this Section having occurred, such unit or units shall not be subject to termination hereunder until an additional period of ninety days has elapsed after the effective date of this Section without any of the said conditions having occurred.
      "E. Any order issued pursuant to this Section shall be filed for record as provided in Section 11.1 of this Title.
      "F. Any future wells completed within the boundaries of any unit or units terminated pursuant to this Section shall, upon a new unit application being made to the commissioner, be entitled to a unit hearing as otherwise provided for by law as fully as though the original unit or units had never been created, and any such new unit or units shall not be limited in any way by the prior hearing or pre-existing unit or units.
      "G. No provision of this Section shall be construed so as to in any way limit the authority otherwise granted to the commissioner to terminate, extend, or otherwise granted to the commissioner to terminate, extend, or otherwise modify any unit or units.”

      . Id.

      . Id.


author: SHORTESS, Judge.

text:
    DAVIS AND LANDRY, INC. v. GUARANTY INCOME LIFE INSURANCE COMPANY.
    No. 83 CA 0152.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Donald S. Zuber, Baton Rouge, for plaintiff-appellant Davis and Landry, Inc.
    Robert F. Kennon, Jr., Baton Rouge, for defendant-appellee Guar. Income Life Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is a suit on an alleged insurance contract. The plaintiff, Davis & Landry, Inc., alleges that it is entitled to recover benefits under both tort and contract theories. Guaranty Income Life Insurance Company (defendant) denies benefits under all theories. The trial court granted defendant’s motion for summary judgment and dismissed plaintiff’s suit. Plaintiff has appealed.

La.C.C.P. art. 966 states that the motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The trial court had before it a record which consisted of affidavits, all the documents in question, and depositions of the following employees of defendant: Norman L. Duhon, Gary Roth, Judith Woo-ley, Theresa McClendon, Janie Fowler, and former employee Cheryl Oliver.

Plaintiff mailed to defendant an application for a policy of life insurance on the life of Robert A. Davis, one of its principals, on October 22, 1981. At that time, an application for the other principal, Morgan M. Landry, was submitted along with a check from plaintiff for two years’ advance premiums on these applicants. The applications were received by defendant on October 23, a Friday, and on Monday, October' 26, they were checked for completeness and signatures by Janie Fowler, the underwriter. On Tuesday, October 27, the remainder of Davis’ application package, a form entitled “Answers Made to the Medical Examiner,” executed by Dr. E. Wyman Walker, was received by defendant. This form reached Fowler the following day, Wednesday, October 28. Based upon the answers given to the questions in that form, she decided that it would be necessary to obtain an “Attending Physician’s Statement” (APS) from Dr. Walker to determine the details of Davis’ visits. On Monday, November 2, the request for the APS was mailed to Dr. Walker. Eight days later, on Tuesday, November 10, Davis died. The APS had not yet been returned when Davis died.

In deciding what benefits, if any, plaintiff is entitled to receive, we face four issues:

(1) Do these facts disclose a breach of a duty owed this plaintiff?
(2) If so, should defendant be estopped to deny coverage based on this breach?
(3) Was the full ($500,000.00) policy coverage in force on the date of Davis’ death?
(4) If not, was the $100,000.00 receipt coverage in force?

An insurance company is under a duty to act upon an application for insurance within a reasonable time, and a violation of that duty with resultant damages will subject the company to liability for negligence. What is a reasonable period must depend upon the facts in each case, and the burden is on plaintiff to show that a policy would have issued but for the delay caused by the neglect of the insurer. Brunt v. Standard Life Ins. Co., 259 So.2d 575 (La.App. 1st Cir.1972); Harding v. Metropolitan Life Ins. Co., 188 So. 177 (La.App.Orl.Cir.1939).

In Morein v. North American Co. For Life & Health Ins., 271 So.2d 308 (La.App. 3rd Cir.1972), writ denied, 273 So.2d 845 (La.1973), it was held that the insurance company had no duty to an insured or to a person who may be named as a new beneficiary to track the insured down and obtain his signature on the change of beneficiary form when he indicates he wishes to change the beneficiary of his policy. In Locke v. Prudence Mutual Casualty Company, 172 So.2d 351 (La.App. 4th Cir.1965), the applicant became ill and was admitted to a hospital five days after applying for a health and accident policy. The court found that the five-day delay in issuing the policy could not be construed as negligence on the part of the defendant insurer. Finally, Sanders v. Hartford Life Ins. Co., 350 So.2d 945 (La.App. 2d Cir.1977), writ denied, 351 So.2d 1208 (La.1977), involved an application for a disability coverage policy. The applicant became disabled three days after applying for the policy and paying the initial premium. The application warned that the insurance company could take as much as 60 days to approve or reject the policy. The company actually took 22 days beyond the sixty-day period in deciding to reject plaintiffs application and refund his premium. Plaintiff was notified of his nonacceptance even later, after a period of four and one-half months had elapsed from the date of the application. Because defendant’s delay in rejecting the application was partially caused by plaintiff’s failure to make full disclosures of his prior medical history and attending physicians, the court found that the delay was not unreasonable.

Based on the foregoing, we find that the insurer did not breach any duty when it did not inform plaintiff that the physician had not returned Davis’ APS. The APS had only been in the physician’s possession on the date of the applicant’s death for, at most, seven working days. This is simply not an unreasonable amount of time for the insurer to allow the physician to complete and return the APS. Moreover, even if it can be said that defendant breached a duty to this plaintiff, it is clear from the deposition of Fowler, the underwriter, that the policy would not necessarily have issued even upon prompt return of the APS. The APS, as returned on November 17, showed that Davis had suffered tingling and numbness in his hands and “a vague, interior chest wall discomfort” and that Dr. Walker had referred him to a neurosurgeon, Dr. John Clifford, regarding this symptom. Fowler testified that, based upon this information, additional statements would have been required from Dr.- Clifford. This testimony, though self-serving, is completely logical and would be the only reasonable action to be taken by defendant faced with that information. Using the “but for” test enunciated in Brunt, it would be impossible for plaintiff here to prove that the policy would have issued “but for” the negligence of defendant, because the testimony of Fowler that defendant would not have issued the policy is supported by a medical report justifying a genuine uncertainty as to the applicant’s acceptability. Even assuming that the APS had been returned to defendant immediately upon receipt by the physician, there is no way for plaintiff to establish that the report which would have been requested by defendant from Dr. Clifford would have reached defendant before Davis’ death. In other words, given that a report from Dr. Clifford would have been required by defendant, the amount of time it would have taken Dr. Clifford to return his report is a totally unknown and unknowable element which plaintiff would have to prove in order to show that “but for” defendant’s negligence the application would have been approved.

Since we find, based upon these facts, that defendant did not breach a duty, we find no liability in tort here and need not address the plaintiff’s “estoppel to deny coverage” argument.

There is no genuine issue as to the fact that the policy of insurance had not been issued on the life of Robert Davis before or on the date of his death. Plaintiff presented no policy or evidence of one issued other than the assignment of a “policy number” to Davis’ application. The assignment of this number was explained in defendant’s witnesses’ depositions and affidavits as a mere form of registration, such number being composed of the month, day, year, and chronological sequence of the receipt of that application on that day. Such number would be used on a policy in the future should a policy be issued.

Plaintiff claims that it is entitled to a $100,000.00 coverage under the terms of the premium receipt. The receipt provides for a limited amount of coverage after the fulfillment of certain conditions, but before the delivery of the policy. The conditions are:

PARAGRAPH A
(1) Any check for which this receipt has been issued must be honored on first presentation.
(2) The amount paid equals or exceeds the monthly premium for the policy applied for and is paid at the time of application.
(3) Each person to be insured must be acceptable to the company (after investigation and medical examination, if required) under its underwriting rules, limits and standards for the plan and amount applied for, without modification, at the Company’s standard rates.
PARAGRAPH B
If the above conditions have been fulfilled and the Company actually approves this application, until the policy applied for is actually delivered, the amount of insurance, including accidental death benefits, which may become effective under this receipt, shall not exceed the amount of insurance applied for or $100,000, whichever is smaller.

Paragraph A, conditions (1) and (2), were fulfilled by plaintiff. Condition (3) was not fulfilled at any point before Davis’ death. Plaintiff contends that the information eventually received from Dr. Clifford established that Davis had merely a minor nerve problem which caused his tingling and numbness and chest discomfort. According to plaintiff, this establishes that Davis was at the time of his death “acceptable” to the company. However, plaintiff neglects to read the entire text of the condition. It requires that the person be acceptable after an investigation and medical examination, if required under its underwriting rules.

Defendant was involved in investigating Davis’ medical record, pursuant to the decision of its underwriter (Fowler) and the requirements of its underwriting rules, up until and including the date of Davis’ death. Therefore, he could not have been acceptable after investigation because an investigation was taking place when he died. Furthermore, Section B adds a fourth requirement that the company “actually approves” the application in order for the receipt coverage to become effective. The fact that the company was still conducting an investigation of Davis’ health negates any possibility that it had actually approved his application. Its approval of the application of the other principal of plaintiff, Landry, and issuance of a policy on his life on the date of Davis’ death, have'no bearing on its actions regarding Davis’ application. We therefore find that no policy had been issued and that the receipt coverage was not in effect due to nonfulfillment of all the conditions contained in the receipt.

Based on the foregoing, we find that there is no genuine issue of material fact and that defendant is entitled to a judgment as a matter of law. We find that the trial court correctly granted the summary judgment and we affirm. All costs are taxed to plaintiff.

AFFIRMED.


author: CRAIN, Judge.

text:
    William Floyd McGEE, et al. v. Robert McCLURE, et al.
    No. 83 CA 0161.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Pete Lewis, New Orleans, for plaintiffs, appellants.
    Albert H. Hanemann, Jr., New Orleans, for defendants, appellees.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court consistent with a jury verdict in favor of defendants Robert McClure and Peninsular Fire Insurance Company and against the plaintiffs William Floyd McGee and Vanessa Parker McGee.

On the afternoon of July 5, 1980, William and Vanessa McGee left their almost two year old son Jared at the house of Larry and Michele McGee for the day. Larry McGee is William McGee’s brother. He and his wife Michelle had agreed to babysit young Jared while his parents went to New Orleans. Later in the afternoon, Larry McGee took Jared outside with him in the backyard while he did some work. Larry returned inside the house for a period of 5-10 minutes to use the restroom, leaving Jared alone in the unfenced backyard. When he returned, Jared was missing. After an extensive search, Larry found that Jared had drowned in a pond across the road from the McGee’s house on property owned by defendant, Robert McClure.

The McClure property was entirely fenced and the gate was normally locked. On that day it was left open for a period of 15-80 minutes while Mr. McClure and some workmen attempted to start McClure’s car by pushing it down the road.

Mr. and Mrs. McClure were in the commercial bird business and had various types of exotic birds on their property, mostly in cages. The pond in which Jared drowned was one of two ponds on the property. In order to reach the pond, Jared had to walk around the McGee’s house and approximately 100 feet down the road to the McClure’s gate and then walk approximately 100 feet further to get to the pond.

After the accident, William and Vanessa McGee entered into a settlement agreement with Mr. and Mrs. Larry McGee and their insurer for the sum of $25,000 and released them from liability for Jared’s death. The plaintiffs then brought suit against Robert McClure and his insurer claiming that the defendants were strictly liable for the unreasonably dangerous condition of the premises under La.C.C. art. 2317 and were also negligent under La.C.C. art. 2315 for having an attractive nuisance on their property.

The case was tried by jury on August 30, 1982, in Covington, Louisiana. Prior to closing statements the judge informed the attorneys that he would instruct the jury on the law of attractive nuisance, but did not find the strict liability of La.C.C. art. 2317 applicable to the case and would refuse to give the strict liability charge requested by plaintiffs. The jury returned a unanimous verdict finding Robert McClure not liable for Jared McGee’s death. Subsequently, judgment was rendered in the defendants’ favor. From that judgment plaintiffs appeal listing as their sole assignment of error the failure of the trial judge to give the requested strict liability jury charge.

Appellants argue that the court omitted an “applicable essential legal principle” by failing to give the strict liability charge to the jury and that such constitutes reversible error. We disagree.

It was the opinion of the trial judge in the case before us that the McClure’s pond did not present an unreasonable risk of harm to Jared McGee, and that reasonable minds could not differ on that point. Consequently, the trial judge refused to give the strict liability charge. Without deciding the question of whether the instruction should have been given, the facts fully support a finding of no liability in this case. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

As the appellant points out, before it can be concluded that the pond created an unreasonable risk of harm to young Jared, the trier of fact must balance the probability and magnitude of the risk against the utility of the thing to the owner. Entrevia v. Hood, 427 So.2d 1146 (La.1983); Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

Based upon the facts presented at trial the probability of a two year old drowning in the McClure’s pond was extremely slight. The McClure’s property was located in a rural, fairly unpopulated area and was entirely fenced in, with a gate that was generally closed. Prior to the accident, the McClures had never had any problem with persons coming onto the premises. Neither did they have any reason to suspect that a two year old child was staying with the McGees that day and would be allowed to roam unsupervised for as long as ten minutes. Chances are that any child young enough to drown in a shallow pond would be closely watched by some adult.

The gate to the McClure property had only been open for a short time that day while the driveway was being used to start a car. The pond was not deep and had sloping sides. There is also some evidence that suggests that the pond Jared drowned in was not visible from the road by a child of Jared’s height due to the foliage along the fence and tall grass along the pond’s edge. Most of the birds were caged in the back of the property and out of Jared’s sight. Of the few birds that did run free, there was no evidence that Jared saw or heard them. The testimony was that the only birds allowed to roam free were peacocks which had lost their colorful plumage for the season and were prone to stay under the trees unobservable during the heat of the day. Therefore, the facts reveal that the chance that a small child would wander on the McClure property and drown was very slight.

Balancing the small risk of someone drowning with the social utility of the pond, we find that the commercial and aesthetic value of the pond to the McClures outweighs the probability of harm. Immediately prior to the accident, the McClures used the pond primarily for personal enjoyment, but in the recent past had used the pond to raise water fowl commercially.

Therefore, based on the foregoing facts, we agree with the trial judge that the McClure’s pond did not present an unreasonable risk of harm.

For the reasons assigned we affirm the judgment of the trial court. All costs are to be paid by the appellant.

AFFIRMED.