author: BOUTALL, Judge.

text:
    Hubert J. NAQUIN v. JOHNS-MANVILLE SALES CORPORATION.
    No. 83-CA-707.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.
    Judith A. DeFraites, Gertler & Gertler, New Orleans, for Hubert J. Naquin plaintiff-appellant.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Johns-Manville Sales Corporation defendant-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

Hubert J. Naquin, a 60 year old man who was employed at Johns-Manville Marrero plant between 1950 and 1970, filed an asbestosis-related workers compensation claim on October 26, 1982. His claim was dismissed on an exception of prescription based on L.R.S. 23:1031.1(E)(a). We reverse.

In essence the exception is based upon the fact that plaintiffs claim for damages was not filed until October of 1982 and that the evidence shows that plaintiff knew or should have known that he was being treated for asbestosis by his doctor two years earlier in September, 1980. After considering the evidence presented, the court determined that the prescriptive period of six months specified in sub-paragraph (a) of paragraph (E) applies in view of the records which showed plaintiff was first seen by Dr. Martin Brown in September of 1980 and followed up by him, with a diagnosis of pneumoconiosis, indicating the presence of an occupational disease. At the same time the trial judge found that the plaintiff was still employed in strenuous activity and has never been disabled and continues to work until date of trial. However he held that the case of Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979) was not applicable to this case. We believe this to be error.

We refer to the case of Thornell v. Payne & Keller, Inc., 442 So.2d 536 (La. App. 1st Cir.1983) in which a somewhat similar situation was presented to the court. The court considered the application of the Crump case and other authorities, which had been decided under the statute as it existed prior to 1980, and applied those principles to the presently existing R.S. 23:1031.1(E). It was noted that the statute is not written so that sub-paragraphs (a), (b), (c) are not separated either by the disjunctive article “or” or by the conjunctive article “and”. The court held that the existence of all three are necessary for the prescriptive period of that statute to commence, and we agree entirely with that holding and the reasons upon which it is based.

The record shows that the worker in our case has been continuously employed up to the time of trial, and has been for the last number of years working at a strenuous occupation as a tractor operator, with the obligation to perform other labor strenuous jobs from time to time.

We believe it important to stress that there is a difference in the prescription applicable to proceedings in tort (see Owens v. Martin, et al., 449 So.2d 448 (La.1984) and the statute presently under consideration in this workers compensation claim. Generally speaking, this statute points out that the claim is based upon disability, and it would indeed be an unfortunate situation if a worker’s claim should be barred from assertion because of prescription before the disease manifests itself and causes disability, yet at the same time his claim be subject to dismissal on the grounds of prematurity before disability arises.

Additionally, appellant urges to us that the trial judge’s conclusion was based upon doctors’ reports which were timely objected to and are not admissible in evidence under the hearsay rule. We pretermit ruling upon that issue because we have decided on the controlling principles of law.

We conclude that the exceptor has not shown that the 6 months period has run from the three dates specified in sub-paragraphs (a), (b), and (c) of paragraph (E) and plaintiff’s suit is not barred from proceeding.

The judgment appealed from is reversed and the exception of prescription is overruled. This matter is remanded to the trial court for such further proceedings as may be appropriate.

REVERSED.

      . “1031.1 Occupational disease
      A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

      E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
      (a) The disease manifested itself.
      (b) The employee is disabled from working as a result of the disease.
      (c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.


source: Caselaw Access Project

license: Public Domain

text:
    Lizzie WILLIAMS v. Catherine S. ANDERSON, Frederick Anderson, et al. Frederick ANDERSON, et al. v. FIRESTONE TIRE & RUBBER CO., et al.
    Nos. 84-CA-16, 84-CA-17.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.
    Writ Denied Nov. 9,1984.

      Robert R. Faucheux, Jr., Reserve, for Lizzie Williams, plaintiff-appellant.
    Benjamin R. Slater, Jr., Benjamin R. Slater, III, Perry R. Staub, Jr., Monroe & Lemann, New Orleans, for Firestone Tire & Rubber Co., defendant-appellant.
    Gregory J. Lannes, Jr., Chalmette, Norman Sisson and Marshall Wroten, Baton Rouge, for Louisiana Dept, of Transp. and Development, defendant-appellee.
    Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for Catherine S. Anderson, Frederick Anderson and Commercial Union Ins. Co., defendants-appellants.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   BOUTALL, Judge.

This is an appeal of the dismissal of defendant Louisiana Department of Transportation and Development from a suit on a single vehicle accident in which a guest passenger was injured.

On July 16,1978 plaintiff-appellant Lizzie Holloway Williams was a guest passenger in a vehicle driven by Catherine Anderson and owned by the community of acquets and gains existing between defendant-appellants Catherine and Frederick Anderson. Mrs. Williams and Mrs. Anderson were traveling on Louisiana Highway 636-3 in LaPlace, when Mrs. Anderson lost control of the vehicle, ran off the road and struck a tree.

Lizzie Williams brought suit for the resulting personal injuries against Mrs. Anderson as driver, her husband, and Commercial Union Assurance Company, their insurer; against Firestone Tire & Rubber Company on the basis of a defective tire; against the Louisiana State Department of Transportation and Development (DOTD) on the basis of a defective road shoulder; and against Brenda Henderson as a partner in the carpool operated by herself and Catherine Anderson.

This cause was consolidated with the suit brought by the Andersons and Commercial Union against Firestone Tire & Rubber Company in which DOTD was also made a party defendant.

Judgment was rendered on June 7, 1983 dismissing Firestone, the DOTD and Brenda Henderson. Defendants the Andersons and Commercial Union Assurance Company were held liable in solido in the amount of $75,000.00 for pain and suffering and disability, and in the amount of $22,000.00 for lost wages and past medical expenses of Lizzie Williams.

Plaintiff Lizzie Williams and defendant-third party plaintiffs, Frederick Anderson, Catherine Anderson and Commercial Union Assurance Company appeal the dismissal of defendant the DOTD.

Appellants assign the following as Errors:

“I It was manifest error for the trial court to disregard the expert opinion of Dwayne T. Evans (by deposition) in arriving at judgment in this case.
IIHad the Court given the proper weight to the deposition testimony of Dwayne T. Evans and in light of the jurisprudence, it was error for the trial court to dismiss the Louisiana Department of Transportation and Development.
III It was manifest error for the trial court to find that the defective highway was not a substantial cause of the accident.
IV It was manifest error for the trial court to hold that the driver, Catherine Anderson, was the sole and proximate cause of the accident in question.
VIt was manifest error for the trial court to find that the inadvertant straying from the highway of Catherine Anderson precluded any basis for liability on the part of the Department of Transportation and Development.”

Appellants argue that a trial court is required to accord great weight to the testimony of an expert and that the court may reject it only if it concludes that the reasons given in support are unsound. Thus they argue that the trial court erred by disregarding the expert testimony of Mr. Dwayne T. Evans, a well-qualified expert in the field of traffic engineering, who testified that the road shoulder was defective and that this defect was the proximate cause or cause in fact, of the accident.

The settled jurisprudence is that expert testimony is to be weighed by the trier of fact in the same manner as other evidence. Necaise v. Vicknair, 391 So.2d 1347 (La.App. 4th Cir.1980); Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976). See also State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). The trial judge is not bound by expert testimony. He may substitute his own common sense and judgment for that of an expert witness where in the opinion of the trier of fact such substitution appears warranted by the testimony as a whole. Newitt v. Hospital Corporation of Louisiana, 417 So.2d 391 (La.App. 5th Cir.1982).

It is clear from the record that the trial judge took into consideration all of the testimony and evidence including Mr. Evans’s deposition. In pertinent part the judgment appealed from reads:

“2. The road shoulder was defective but it was not a proximate cause or cause in fact of the accident.
3. Catherine Anderson was negligent and her negligence was the proximate or cause in fact of the accident.”

In his Reasons for Judgment the trial judge states that he reached these conclusions based on the deposition testimony of Mrs. Anderson that she lost control of her vehicle before it went off the road; that there were no ruts or defects that prevented her from regaining control; that she did not travel completely off of the road before hitting the tree; and that when she went off of the road she immediately hit the tree. He also took into consideration the testimony of Mrs. Williams, the vehicle’s passenger, that the car ran off the road right into the tree, and Police Lt. Walker, the investigating officer, who said that the skid marks indicated Mrs. Anderson ran directly off of the road into the tree and there was no indication of the vehicle attempting to get back onto the roadway.

From this testimony and Mr. Evan’s deposition, the trial judge found the following facts:

“1. Anderson lost control of the vehicle while driving on the paved portion.
2. There was no defect of the paved portion to cause her to lose control of the car.
3. The physical evidence and the rather contradictory statements of the driver and the passenger establishes that the vehicle ran directly off the roadway and shoulder and hit the tree and that at no time did the driver attempt to reenter the paved portion from the shoulder.
4. The shoulder of the roadway was defective.”

The trial court obviously considered the expert’s testimony but concluded it was not of great weight when compared with other evidence and testimony.

Appellants also urge that the trial court erroneously found that the proximate cause of the accident was the sole negligence of Catherine Anderson, and not the defective road shoulder.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), at p. 724, the Supreme Court held: “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error .... ” Furthermore, the court held that a reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and infer-' enees are as reasonable.

The only evidence presented in favor of appellant’s proposition that it was the defective road shoulder that caused Mrs. Anderson to lose control of her vehicle is Mrs. Anderson’s trial testimony, which contradicts her deposition testimony.

Even the conclusions of the expert traffic engineer, Mr. Dwayne Evans, that the condition of the shoulder contributed to the accident is cast into doubt by the following testimony taken from his deposition:

“Q. Do you know if the Anderson vehicle ever tried to return to the travel ■ portion of the road once it left the travel portion?
A. I don’t know. There were no indications that it did.
Q. You read the deposition of Catherine Anderson?
A. Yes.
Q. Isn’t it true that in her deposition she relates losing control of the car while she was on a perfectly smooth surface of the roadway?
A. She indicated that, yes.
Q. And that she went directly into the trees and never tried to come back to the roadway.
A. I don’t know what her exact words were, but she went — there’s other evidence that indicates that she went toward the tree and never swerved back or never was able to swerve back; whether she tried, I’m not sure.”

Considering all of the evidence presented, there was ample evidence before the trial court which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for the trial court’s findings. We find no manifest error.

The Judgment is affirmed.


author: CHEHARDY, Judge.

text:
    Londa Foster MEAUX, et al. v. Wayne L. ADAMS.
    No. 84-CA-9.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.
    Harold L. Molaison & Associates, Harold L. Molaison, Gretna, for plaintiffs-appel-lees.
    Shushan, Meyer, Jackson, McPherson & Herzog, Rader Jackson, New Orleans, for defendant-appellant.

      Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   CHEHARDY, Judge.

This appeal arises from a suit by Londa Foster Meaux, individually and as adminis-tratrix of the Succession of Dudley J. Meaux, Jr., against Wayne L. Adams for breach of an agreement to purchase real estate. The trial judge found Adams liable and awarded damages in the amount of $27,480. Adams has appealed.

Mr. Adams offered to purchase a tract of land from Mrs. Meaux, provided he could obtain certain special financing arrangements. When his request for a loan was rejected by a bank officer, Adams notified his real estate agent. Mrs. Meaux and her attorney, however, did not learn the financing had fallen through until one day before the act of sale was to have been passed. They had already made the necessary legal preparations for the act of sale, such as opening the succession of Mr. Meaux, obtaining mortgage and conveyance certificates, et cetera. There was an outstanding mortgage on the property in question due and payable on October 30, 1981, which Mrs. Meaux planned to pay from the funds received in the sale to Adams. Because the sale fell through, she defaulted on the mortgage; a few days later, the mortgagor foreclosed, seized the property and sold it at public auction.

The purchase agreement in question is the standard form used by the Jefferson Board of Realtors, Inc. The parties inserted the following specific condition:

“Property sold and purchased * * * ■ for the sum of One hundred twenty-five thousand dollars and XX/100 ($125,000) Dollars. This agreement is contingent on the purchaser’s ability to borrow $130,000.00 from the Continental Bank for the period of one year from the act of sale at a rate not to exceed 12%. Principal and interest shall be due and payable to the bank in a single payment one year after the act of sale.”

The only time limitation is in a paragraph providing the act of sale was to be passed on or prior to October 30,1981. The agreement was signed by Mr. Adams on August 18, 1981, and by Mrs. Meaux on August 21, 1981.

In her petition Mrs. Meaux alleged Mr. Adams had failed to make a good-faith effort to secure the financing upon which the purchase agreement was conditioned. She alleged that as a result of defendant’s failure to “carry through with the agreement” the property was placed out of commerce for a period of approximately 2¾⅞ months, resulting in foreclosure of the mortgage and subsequent sale of the property at public auction. Mrs. Meaux alleged she suffered damages thereby in the amount of $27,480, the difference between the price the property brought at public auction and the price the defendant was to have paid had the proposed sale to him been carried through.

At trial, Mr. Adams testified he is a real estate developer and that this particular property had been offered to him several times before, but he had not been interested in it. Eventually, however, his real estate agent, Randall Walker, came to him and advised him he could get “a great deal” on the property and explained the details. Adams told Walker he was interested only if he could borrow the sale price plus the agent’s commission (totaling $130,-000) at a special financing rate of 12% with no principal or interest due until a year after the sale; he did not want it at “market financing.”

He discussed the deal with Michael Bush, a vice-president of Continental Bank, around August 10 or 15, 1981; Bush indicated the bank would agree to the stipulated financing terms. After the purchase contract had been signed, he talked to Bush again, but this time Bush informed him Continental Bank was no longer interested in loaning the money. Adams never made any written application to Continental Bank for the loan.

Following his conversation with Bush, Adams notified Randall Walker he could not obtain the financing. Asked why he had not contacted Mrs. Meaux or her attorney as soon as he learned he could not get the loan, he said it was not his business to communicate with them:

“I did tell the person who I should tell and that was my agent who is representing me * * *. Again, that is why I have an agent. There is no need for me to communicate with you all.”

Mr. Adams admitted he had called Mrs. Meaux’s attorney on October 29, 1981, the day before the act of sale was to have been passed under the terms of the purchase agreement, to advise him the financing was unavailable. He stated he did so because Walker, his agent, requested it.

On cross-examination, plaintiffs attorney attempted to establish that Adams was aware of the precarious situation in which the property stood relative to foreclosure. Asked whether he had been told the Meauxs had to pay off the mortgage balance by October 30, Mr. Adams said,

“I did not know all the details. I didn’t agree to pay off any mortgage with Continental Bank or anyone. * * * I wasn’t aware of any deadline as far as the date goes, no sir. * * * I had it explained to me the whole gist of the situation, which was very complicated. I don’t remember every detail of it.”

Michael Bush testified that Adams had contacted him prior to August 18, 1981 to discuss financing on some lots in Kensing-ton Gardens. He could not recall definitely the terms of the proposed financing, except “they were something less than what they were in normal banking practices at the time for that type of credit.” Bush said the bank had a loan, made to Mr. Meaux before his death, that was in jeopardy; Bush indicated to Adams that if there was any doubt as to the bank’s getting paid on that, they would consider Adams’ proposed loan. He made no commitment at that point, however.

Bush stated that when Adams contacted him again about the deal, Bush told him the bank’s loan to Meaux was no longer in jeopardy and therefore the bank was not interested in loaning money to Adams to acquire the lots under the terms and conditions he requested.

Bush stated he did not require Adams to make a formal loan application. In fact, he stated, the bank did not require a loan application to be in written form:

“A. There is nothing ever received from the customer for an official request. Generally, we generate that internal. The officer does — to present to the board, once the officer decides the merits being presented.
“Q. But you didn’t have any written agreement to the effect that he wants to make an application?
“A. We’ve never done that. I don’t know of any bank that does.”

Bush testified further that, although he never presented Adams’ request to the bank’s board of directors for approval, when he turned down the loan he did so in his capacity as an officer of the bank, not as an individual:

“The bank has a loan policy which I have to administer and that policy indicated that this loan would not be approved as it was requested. So, there was no value of me to putting through any further work in that behalf.”

Although it is unclear from the transcript exactly when Bush rejected Adams’ loan proposal, it appears to have been on either August 21 or September 21, 1981.

In its reasons for judgment, the district court stated,

“The Court concludes that defendant had a legal right to withdraw from the contract when the specified lending agency rejected his application for a loan. However, his failure to timely notify the seller was negligence to the point of bad faith.
“In effect he took the property out of commerce for three months and deprived the plaintiff of finding another purchaser in order to stave off the foreclosure proceedings.
“The Court concludes the actions of defendant caused her to lose the difference between the act of sale price of $125,000.00 and the mortgage balance of $97,520.00 or a total sum of $27,580.00 which the Court awards as damages herein.”

In his brief to this court, appellant has raised several specifications of error. We find it unnecessary to address these individually because our decision turns on one pivotal point.

The issue before us on appeal is whether the trial court erred in its implicit holding that the defendant had a duty to give early notice of the loan rejection although the written contract between the parties did not require such notice.

“Agreements legally entered into have the effect of laws on those who have formed them. * * *” LSA-C.C. art. 1901. Courts are bound to give legal effect to contracts according to the true intent of the parties; the intent is determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences. LSA-C.C. art. 1945.

The issue the plaintiff attempted to establish at trial — although not one raised through her pleadings — was that defendant had an implied duty under the purchase agreement to notify her promptly when his loan was turned down. Mrs. Meaux’s attorney attempted to establish that because Adams was aware of her situation relative to mortgage foreclosure, in effect he agreed to be responsible for any mortgage payments that became due from the time the purchase agreement was signed until the date of sale.

There is no basis for this either in the written contract or in the testimony. Although Mr. Adams admitted he was aware of some of the seller’s economic problems, obviously he was interested only in purchasing the property at a bargain. There is nothing to show either he or Mrs. Meaux intended that he become liable for her financial difficulties.

Without a provision in the agreement requiring the purchaser to notify the seller of the acceptance or refusal of his loan application within a specified time, we cannot impose such a burden on him. Accordingly, we conclude the trial judge erred in finding Mr. Adams liable to Mrs. Meaux.

The court’s implicit finding was that Adams’ verbal application for the loan, under the circumstances here, was a good faith effort to secure it. This conclusion accords with the law. See Century 21 Acadia Realty & Dev. v. Brough, 393 So.2d 287 (La.App. 1st Cir.1980); Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir.1961).

In light of our conclusion, it is unnecessary for us to address the issues raised by appellant concerning damages.

For the foregoing reasons, the judgment of the district court is reversed, and the suit is dismissed. All costs are to be paid by plaintiff-appellee, Londa Foster Meaux.

REVERSED AND RENDERED.

       Apparently the amount stated in the reasons for judgment is a typographical error. The amount actually awarded in the judgment is $27,480.


author: CURRAULT, Judge.

text:
    Agustin CHIN v. Herbert J. ROUSSEL, Jr. and Roussel Engineering, Inc. Douglas C. LEWIS v. Herbert J. ROUSSEL, Jr. and Roussel Engineering, Inc.
    Nos. 83-CA-859, 83-CA-860.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.
    Writ Denied Nov. 9,1984.

      Eric Oliver Person, New Orleans, for plaintiff-appellee.
    Robert A. McMahon, Jr., Bernard, Cassi-sa, Babst & Saporito, Metairie, for defendant-appellant.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Parish of Jefferson, wherein the Honorable Floyd W. Newlin rendered judgment in favor of plaintiffs and against defendants enforcing a buy-back provision of a shareholders’ agreement entered into by the parties to this litigation.

Herbert J. Roussel, Jr. is president and chairman of the board of directors of Rous-sel Engineering, Inc., a closely held corporation. All common capital stock is owned by employees of Roussel Engineering, Inc.: Mr. Roussel owning 74 percent; Mr. Agus-tín Chin, 15 percent; Robert Stoddard, 7 percent; and Douglas Lewis, 4 percent.

On June 11, 1979, all of the stockholders became signatories to a consensual restrictive covenant titled “Shareholders’ Agreement.” The corporation also became a party to this agreement through the signature of Herbert Roussel in his capacity as president.

In 1980, both Lewis and Chin ceased to be employed by Roussel Engineering, Inc. Pursuant to certain provisions of the 1979 shareholders’ agreement, Lewis and Chin requested that an audit be made so that the corporation could repurchase their stock. An audit was prepared and pursuant to a formula set out in the agreement, the stock was given a value. However, the corporation refused to purchase the 19 percent shares held by Lewis and Chin.

Suit was filed by Lewis and Chin against Herbert Roussel, Jr. and Roussel Engineering, Inc., asking the trial court to enforce the buy-sell provisions of the shareholders’ agreement which they asserted obligated the corporation to repurchase their shares upon cessation of their employment with Roussel Engineering.

In response, defendant, Herbert Roussel, reconvened, stating that he was the holder and payee of a promissory note executed by Douglas Lewis and avering such note to be due and owing together with specified interest and 25 percent attorney’s fees. After a trial on the merits, the trial court rendered judgment in favor of plaintiffs and against Herbert Roussel, Jr. and Rous-sel Engineering, Inc. as to defendants’ obligation to repurchase plaintiffs’ stock; and further in favor of Herbert Roussel against Douglas Lewis as to the note held by Mr. Roussel, but failed to award any attorney’s fees. Defendants have appealed.

Appellants assert the following specifications of error:

that (1) the trial court erred in ruling that the June 11,1979 Shareholders’ Agreement obligated Roussel Engineering, Inc. to purchase the stock of Agustín Chin and Douglas C. Lewis; that

(2) the trial court erred in admitting into evidence photocopies of the June 11, 1979 Shareholders’ Agreement, the A.A. Harmon Audit and the June 1, 1979 Pre-Payment Plan Document; that

(3) the trial court erred in excluding the testimony of Joseph Barbe on the question of Herbert J. Roussel, Jr.’s intent regarding the purchase or redemption agreement; that

(4) the trial court erred in casting Herbert J. Roussel, Jr. in judgment individually; and that

(5) the trial court erred in failing to award Herbert J. Roussel, Jr. attorney’s fees of 25 percent of the balance then due on the promissory note made by Douglas C. Lewis.

At the close of plaintiffs case, defendant moved for a directed verdict as to Agustín Chin on the grounds he voluntarily resigned from the corporation. In denying such motion, the trial judge stated that, after reading the shareholders’ agreement at least ten times, he found it unambiguous and that the totality of the agreement indicated clearly that any reasonable person would interpret it to mean the corporation was bound to purchase the shares. The appellant initially argues that conclusion was error.

Section 5 entitled “Endorsement on Stock Certificates,” contains an endorsement which is mandated by the agreement to be placed on all certificates of stock. This restrictive endorsement subjects the transfer of the stock to a compulsory buy-sell agreement between the holder and the corporation. The language of this required endorsement is clear and unambiguous.

Appellant argues, however, that this restrictive endorsement does not apply to the stockholders’ agreement in its entirety, but instead applies only to Section 3B of that agreement. Section 3 is entitled “Obligation to Sell and To Purchase Stock,” and paragraph B is concerned with the corporation’s mandatory purchase of any holder’s stock should that holder’s marriage be dissolved by judicial separation or divorce, or if he and his spouse have a judicial separation of property.

This court succintly stated the applicable law as follows:

“Legal agreements have the effect of law upon the parties, and they are bound by their agreement regardless of any seemingly harsh consequences, provided the agreement is not contra bonos mores or in violation of some prohibitory law: Further, courts are bound to give legal effect to all contracts according to the true intent of the parties. Intent is to be determined by the words of the contract, when same are clear, explicit and lead to no absurd consequences.” (Citations omitted) Kenner Industries v. Sewell Plastics, Inc., 437 So.2d 1191 (La.App. 5th Cir.1983)

The agreement itself is completely void of any language, explicit or implied, which would indicate that the compulsory buy-sell arrangements found in Section 5 should be limited to Section 3B. The buy-sell found in Section 3B is specifically triggered by the stockholder’s judicial separation, divorce or judicial separation of property. The endorsement’s buy-sell found in Section 5, however, is stated in clear, unambiguous terms, contained wholly within a separate and distinct section of the agreement, and can in no way be interpreted to be restricted to Section 3B. We reach this conclusion after several readings of the entire agreement with emphasis on the relationship between Section 5 and the complete document.

Appellants next assert that the trial court erred in concluding that the compulsory buy-sell agreement could be triggered by the cessation of employment as found in Section 3A. At trial, appellant argued unconvincingly that the term “cessation of employment by the corporation” could only mean termination of the shareholder’s employment by the firing of that shareholder. The trial court disagreed and interpreted “cessation of employment” as termination of employment for whatever reason. Appellant now argues such conclusion was error.

After close inspection of Section 3A, it is apparent that the obligation to sell and to purchase is triggered by the shareholder’s termination regardless of whether that termination was either voluntary or involuntary. We are in agreement with the interpretation of “cessation of employment” given by the trial court and can find no error in that interpretation.

Appellants argue strongly that the copies of the shareholders’ agreement, audit and pre-payment plan, entered into evidence by plaintiffs at trial, were not the best evidence. They assert that it was incumbent upon the appellees to make a due and diligent effort to obtain originals of each of those documents or at the very least certified copies.

Appellants fail, however, to remember that a certified true copy of the shareholders’ agreement had already been placed into the record by them at an earlier date. Appellee not only made use of this copy in questioning Mr. Roussel as to the content of that agreement, but also entered it as his own exhibit P-1. Appellant is without authority to complain of appellee’s making use of that which was already in the record especially when appellant caused it to be there. There was no reversible error committed by the trial court in allowing appellee to rely upon a certified true copy of the shareholders’ agreement which had already been placed in the record.

While on the stand, appellant, Mr. Rous-sel, admitted that an audit had been prepared and that he had requested it to be prepared. He was then shown a photocopy of a document prepared by A.A. Harmon and Company dated October 6, 1980 and admitted that it was the audit prepared for the stockholders of Roussel Engineering, Inc. Appellee then placed the audit into evidence only to show that an audit had been prepared with its relevancy to be determined later.

Mr. Barbe, a C.P.A. employed by A.A. Harmon, personally prepared the audit. At trial, he identified the copy given to the court earlier as the audit he prepared. He was questioned by all parties including the trial judge as to the methods and procedures he used in preparing the audit. The trial court did not commit reversible error in allowing to be placed into evidence a photocopy of an audit when the one who prepared such audit was placed on the stand, questioned and admitted to the authenticity of that copy.

Concerning the third document, the June 1, 1979 pre-payment plan, appellant makes the same argument—that being a photocopy it is not the best evidence and is therefore inadmissible.

A copy of the 1979 pre-payment plan was shown to Mr. Roussel. While on the stand, he admitted to being the preparer of that plan and acknowledged that what he was being shown was the plan he had prepared. Mr. Roussel was questioned without interruption as to the contents and meaning of that plan. Appellants did not then object to the document’s authenticity or contents. Appellant objected as to the photocopy not being the best evidence only when plaintiff moved to enter it into evidence. The trial court did not commit reversible error in allowing to be placed into evidence a photocopy of a pre-payment plan when the preparer of that plan was placed on the stand, questioned and admitted to the authenticity of the copy.

Appellant next argues that the trial court erred in excluding the testimony of Joseph Barbe on the question of Herbert J. Rous-sel, Jr.’s intent regarding the purchase agreement. We find no error.

Legal effect to all written contracts will be given in accordance with the true intent of the parties; that intent will be determined by the words of the contract when they are clear, explicit and lead to no absurd consequences. LSA-C.C. art. 1901, 1945; West Side Funeral Home, Inc. v. Nicholas, 425 So.2d 837 (La.App. 5th Cir.1982).

The trial court repeatedly stated that the shareholders’ agreement was clear and unambiguous. In denying defendant’s request that Mr. Barbe be allowed to testify as to Mr. Roussel’s intent, the trial judge stated that he had no difficulty in interpreting the agreement. Where the intent of the parties can be ascertained by analysis of the contract provisions, parol evidence bearing on that intent is inadmissible. Smith v. Moncrief, 421 So.2d 1127 (La.App. 3d Cir.1982). We too find that the provisions of the shareholders’ agreement are clear, unambiguous and lead to no absurd consequences. Accordingly, the trial court was correct in not allowing Mr. Barbe to testify as to Mr. Roussel’s intent.

Judgment was rendered against Roussel Engineering, Inc. and Herbert Roussel, individually. Appellant, Herbert Roussel, contends that casting him individually liable together with the corporation for a corporate debt was error. Appellee argues, however, that this court should “pierce the corporate veil” solely on the basis that Mr. Roussel is the majority stockholder of Roussel Engineering, Inc. and affirm the judgment as written.

Corporations are distinct entities separate from its shareholders. The shareholders will not be liable for the debts contracted by the corporation except in certain exceptional circumstances. LSA-C.C. arts. 435, 437; LSA-R.S. 12:93(B); Hight Enterprises, Inc. v. Smith and Johnson, 421 So.2d 267 (La.App. 4th Cir.1982); LeBlanc v. OPT, Inc., 421 So.2d 984 (La.App. 3d Cir.1982). An individual’s status of being the sole shareholder of a corporation is insufficient to establish the corporation as the individual’s alter ego and, hence, insufficient to hold the individual liable for a judgment rendered against the corporation. Hock v. Sea Camper of New Orleans, Inc., 419 So.2d 1315 (La.App. 4th Cir.1982).

Regardless of the basis of piercing the corporate veil, the situation must be viewed with regard to the totality of circumstances present in each case. Whether the corporate veil should be pierced is primarily a finding of fact best made by the trial judge. Liberto v. Villard, 386 So.2d 930 (La.App. 3d Cir.1980); Hight Enterprise, supra; LeBlanc, supra.

In the matter sub judice, no evidence other than Roussel’s status as a majority shareholder of Roussel Engineering was presented at trial. This is clearly insufficient to hold Roussel individually liable.

The note upon which appellant reconvened calls for 25 percent attorney’s fees on the unpaid balance if issued upon or placed in the hands of an attorney for collection. A balance of $7750 was due and owing on the note. Appellant now asserts the trial court erred in failing to award any attorney’s fees. On appeal, Roussel claims 25 percent is reasonable and should be enforced.

Our Supreme Court has held that the courts may inquire into the reasonableness of attorney fees despite a stipulation in the note fixing the fees at a percentage of the amount to be collected. Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982) The trial court is in the best position to determine whether a fee is a reasonable fee based upon the factors contained in DR 2-106 of the Code of Professional Responsibility. McCarthy v. Louisiana Timeshare Venture, 426 So.2d 1342 (La. App. 4th Cir.1982).

While we agree with the appellant that the trial court erred in failing to award attorneys’ fees as contemplated by the note, we cannot say that 25 percent is reasonable as the record before us provides no reliable basis for setting such fees. We believe the trial court is in a much better position to determine what reasonable fees should be awarded in accordance with counsel’s legal skills, experience, the complexity of the litigation, time expended and results achieved.

Accordingly, for the above reasons, the judgment in favor of Agustín Chin and. Douglas Lewis against Roussel Engineering, Inc. is affirmed; the judgment, insofar as casting Herbert Roussel individually liable is reversed; and the judgment, insofar as it fails to award Herbert Roussel attorney’s fees on the note signed by Douglas Lewis, is reversed and remanded to the trial court for a determination of reasonable attorney’s fees. All costs of this appeal are to be paid by appellant Roussel Engineering, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Shareholders' Agreement. Section 5 — Endorsement on Stock Certificates:
      "The shares of stock, represented by this Certificate, are subject to a restriction on the transfer thereof and to a compulsory buy-sell and purchase or redemption agreement between the holder hereof and the Corporation, all in accordance with a Shareholder's Agreement, dated filed in the Corporation's registered office, 3017 Kingman Street, Metairie, Louisiana, where it may be inspected.”

      . Shareholder’s Agreement. Section 3A. Obligation to Sell and to Purchase Stock:
      “Upon the cessation of employment by the Corporation, disability or death of either Herbert J. Roussel, Jr., Agustín Chin, Robert P. Stoddard or Douglas C. Lewis, the one ceasing such employment or becoming disabled or his estate and his widow and heirs or legatees upon his death shall be obligated to sell all of the shares of stock of the Corporation, owned by him at the time of the occurrence of any such event, on the following terms: ....”

      . Recent legislation has been enacted whereby a second sentence was added to Civil Code Art. 1935. 1983 Louisiana Acts, No. 483, § 1, amended La.Civ.Code Art. 1935 which now reads as follows:
      "The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more. But where the parties, by contract in writing, have expressly agreed that the debt- or shall also be liable for the creditor's attorney fees in a fixed or determinable amount, the creditor is entitled to that amount as well." (Emphasis added)
      It appears the legislature has exercised its power in response to Leenerts Farms and would chai-lenge the courts’ exercising of the inherent constitutional power to regulate the legal profession. As the instant case was decided well before the enactment of the amendment, we need not address these questions here, but for an interesting discussion see Note, Attorney Fees Provisions and Promissory Notes, 44 La.L.Rev. 831 (1984).

      . 2. DR 2-106 lists the following eight factors to be considered in determining whether an attorney’s fees are reasonable:
      (1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.


text:
    Rose Lee ALLEN v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES et al.
    No. 84-CA-20.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.

      Morris Bart, III, Wayne M. Babovich, New Orleans, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal by plaintiff, Rose Lee Allen, arises from a judgment dismissing her action for malicious prosecution pursuant to a motion for a directed verdict granted to defendants, State of Louisiana through the Department of Health and Human Resources (DHHR), Marion Brenish, Claudette Harris and Robert Roy (all individually and as representatives of DHHR).

Plaintiff, Rose Lee Allen, filed the action for malicious prosecution in order to recover damages as a result of her arrest on September 1, 1979 for violation of LSA-R.S. 14:67, theft of food stamps valued at One Thousand Nine Hundred, Twenty-One Dollars ($1921). On November 13, 1978, the charge was amended to violation of LSA-R.S. 46:114.2, obtaining welfare by fraud. The arrest was based on information provided to the Jefferson Parish District Attorney’s office by the State local food stamp office which alleged that between December 1, 1976 through July 31, 1977, while a food stamp recipient, Ms. Allen was living with Dwight Harris, who was gainfully employed; and, therefore, the entire amount of food stamps she received during this period was received fraudulently. The information regarding plaintiffs arrest, based on welfare fraud, was released for publication to the Times-Picayune by the DHKR. Subsequently, on January 10, 1978, the charges were dismissed by the district attorney for insufficient evidence.

As a result of the conduct of DHHR, plaintiff instituted a malicious prosecution action on August 31, 1979 against the above-named defendants. Prior to trial, the parties stipulated to a bifurcated trial on the issues of liability and damages and the liability portion was tried without a jury on August 6, 1982 and October 29, 1982. Upon the closing of plaintiffs case, defendants moved for a directed verdict. In judgment dated December 7, 1982, the court granted defendant’s motion for directed verdict and dismissed plaintiffs action.

Consequently, plaintiff perfected this appeal of that judgment.

Appellant specifies the following errors:

(1) The trial judge erred in granting the motion for directed verdict since this was a bifurcated trial and plaintiff had only presented the liability portion of their case.

(2) Alternatively, the trial judge erred in granting the motion for directed verdict since plaintiff had presented evidence such that reasonable and fair-minded men could arrive at a verdict in favor of plaintiff.

(3) The trial judge erred in misapplying or disregarding the six essential elements of malicious prosecution as mandated in Eusant v. Unity Industrial Life Insurance Assn., 195 La. 347, 196 So. 554 (1940).

(4)The trial judge erred in not applying the presumption of want of probable cause and malice in favor of plaintiff as mandated in the case of Robinson v. Rhodes, 300 So.2d-249 (La.App. 2d Cir.1974), writ refused 303 So.2d 178 (La.1974).

As to appellant’s first specification of error, she asserts that a directed verdict is appropriately granted only after plaintiff presents his case on both liability and quantum. For this proposition, appellant cites LSA-C.C.P. Article 1810 and the case of Duplechin v. John Doe, Rimmer and Garrett, Inc., 365 So.2d 53 (La.App. 3d Cir. 1978). We disagree.

The portion of LSA-C.C.P. Article 1810 applicable to non-jury trials found in Article 1810(B) states as follows:

“Art. 1810
B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The jurisprudence interpreting the article contrary to appellant’s assertion does not hold that plaintiff must be allowed to present evidence on both liability and quantum prior to rendition of a motion for dismissal. In Duplechin, the court specifically found that plaintiff was forced to rest his case without the introduction of testimony of two witnesses whose evidence related, albeit tangential, to the liability portion of plaintiffs case. The First Circuit in Hysmith v. C.T. Coleson, 396 So.2d 393 (La. 1st Cir.1981) likewise reversed the directed verdict for the reason that the judge granted the motion prior to receiving a deposition related to liability. There the parties stipulated the deposition was to be produced subsequent to trial.

Distinguishing Duplechin, on its facts, the Third Circuit Court in Cloud v. State Farm Mutual Automobile Insurance Company, 440 So.2d 961 (La.App.Cir.1983) affirmed the judgment granting the motion following presentation of the evidence on liability and prior to the case on damages.

In our opinion, those cases properly reflect the intent of LSA-C.C.P. 1810(B). Thus, as appellant neither argues nor does the record indicate that the liability evidence was incomplete when the motion herein was granted, we find no error by the trial court in granting a motion for dismissal prior to a hearing on quantum.

Appellant argues secondly that the trial court erred by applying “the preponderance of the evidence” standard in deciding defendant’s motion under LSA-C.C.P. Article 1810. In this regard, it is asserted that the correct standard is whether the evidence was such that reasonable and fair-minded men could not have arrived at a verdict in favor of plaintiff. For this proposition, appellant cites Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir.1979).

While we agree that the preponderance standard is inappropriate in jury cases, as was the case in Campbell, the jurisprudence holds that the proof required for cases tried before a judge is that of a “preponderance of the evidence.” Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir.1981); Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981) writ denied 412 So.2d 85 (La.1982); Bradley v. Hunter, 413 So.2d 674 (La.App. 3d Cir.1982) writ denied 415 So.2d 952 (La.1982); Egle v. Kidd, 442 So.2d 669 (La. 1st Cir.1983). Thus, as this case was tried by the judge and not a jury, the trial judge did not err in applying the preponderance standard to plaintiffs evidentiary proof.

Applying the preponderance of the evidence standard to the following acts, we find no error by the trial court in granting the motion for dismissal.

Appellant asserts that the trial court erred in that the evidence sufficiently supports proof of the six essential elements of malicious prosecution. In reviewing the evidence, it is argued that the trial court erred in failing to apply the jurisprudential rule that a presumption of malice and want of probable cause exists where charges are dismissed in a criminal action prior to trial as elucidated in Robinson v. Rhodes, supra.

Louisiana law has long provided for the action for malicious prosecution and holds that the action lies in cases where there is a concurrence of the following elements:

(1) the commencement or continuance of an original criminal or civil judicial proceeding;

(2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding;

(3) its bona fide termination in favor of the present plaintiff;

(4) the absence of probable cause for such proceeding;

(5) the presence of malice therein; and

(6) damage conforming to legal standards resulting to plaintiff.

Eusant v. Unity Industrial Life Insurance Assn, supra; Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Hibernia National Bank of N.O. v. Bolleter, 390 So.2d 842 (La.1980). However, it should be noted that malicious prosecution suits are not looked upon with favor by Louisiana courts. Leaman & Co., Inc. v. Victory Iron Works, 411 So.2d 666 (La.App. 4th Cir.1982). In order to be sustained, “a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the willful oppression of the inno-cent_” Johnson v. Pearce, 313 So.2d 812 (La.1975); rehearing denied citing from Staub v. Van Benthuysen, 36 La.Ann. 467, 470 (1884).

In respect to the burden of proof in malicious prosecution cases, appellant is correct in asserting that where the charges made are dismissed by the prosecuting officer prior to trial, there is a presumption of want of probable cause and malice, with the result that defendant in the malicious prosecution action who instituted the prosecution has the burden of showing that he acted on probable cause and without malice. Robinson v. Rhodes, supra; Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir.1975); McCoy v. Burns, 379 So.2d 1140 (La.App. 2d Cir.1980). Yet, proof of the lack of probable cause has been held not to depend merely upon the actual state of the facts, but upon the defendant’s honest belief of the facts in making the charge against the plaintiff. Leaman & Co., Inc. v. Victory Iron Works, supra.

Our review of the record indicates that appellant sufficiently proved the existence of the first three elements necessary in malicious prosecution actions. Unquestionably, criminal proceedings were instituted against appellant for welfare fraud by Marion Brenish, an employee of DHHR. Further, the evidence clearly reveals that the charges were dismissed by the district attorney prior to trial. Upon this showing, under Robinson, the burden shifted to defendants to rebut the presumption of the last two elements of malice and lack of probable cause.

In this regard, the evidence indicates that appellant had been receiving food stamps since 1964 and that she regularly adhered to the department regulations of reporting persons in her household and income. In 1977, the department received an anonymous phone call alleging that between December 1, 1976 and July 31, 1977, an unreported person named Dwight Harris who was gainfully employed was residing in her household.

Appellant testified that she met Mr. Harris in December, 1976 while he was still married to but not living with his wife, Claudette Harris. She stated that two months later he asked her to marry him, but she refused. However, she continued to see Mr. Harris regularly. The testimony shows further that in February, 1977, he used her address as his residence which was reflected on his driver’s license. Also during that time she received $120 from Mr. Harris, purportedly to store boxes, and an $1100 dining room set. Neither item was reported to DHHR. She claimed that he used her address and stored the boxes because he was living on a boat.

In June or July, appellant’s case worker visited her to discuss the charges regarding Mr. Harris and questioned her about an incident involving the police. She denied that Mr. Harris resided at her home, but shortly thereafter voluntarily removed herself from the program. Appellant stated she informed her case worker that she was getting a job, but claims that the real reason was that Mr. Harris was moving in with her at that time. Despite her denial, the investigation proceeded. Eventually, appellant married Mr. Harris.

During the period in question, the facts show that Claudette Harris, Mr. Harris’s estranged wife, was temporarily employed by the local food stamp office and that she knew that appellant and Mr. Harris were seeing each other socially. In fact, in this regard, an altercation occurred between the two women which resulted in appellant’s arrest in May, 1977. Mrs. Harris denied making the anonymous phone call, but stated she did speak with appellant’s case worker regarding Mrs. Allen’s benefits much later.

Also during the period in question, Mr. Harris was employed by Apex Towing Company as a night watchman and was paid by the said company to reside upon and maintain the boat, M/V Charles K. He received a daily wage during the period of December 1,1976 through July 31,1977 for that purpose.

After a review of these facts, it is our opinion that the evidence produced in plaintiff’s case in chief sufficiently rebutted the legal presumption of malice and lack of probable cause. Consequently, as a factual matter, we find the trial court did not err in finding appellant failed her burden of proof by a preponderance of the evidence and in granting the motion for dismissal.

For the foregoing reasons, therefore, we hereby affirm the trial court judgment, dismissing plaintiff's case. Costs of this appeal are to be paid by appellant, Rose Lee Allen.

AFFIRMED.

      . In 1980, the legislature added Article 466 to the Code of Civil Procedure to provide for the separate trials of the issues of liability and damages. The article further provided inter alia, in Paragraph C, that the judgment rendered on the issue of liability is a final and appealable judgment.
      In 1983, Article 466 was repealed, and the bifurcation provisions were relocated from the section on Actions to the section on Trials by addition of Article 1562. The provision dealing with the final and appealable nature of a judgment of liability found in Paragraph C of repealed Article 466 has been incorporated into C.C.P. Article 1915 in the section on Judgments.


author: SHORTESS, Judge.

text:
    Marilyn June Sturrock SIBLEY, et al. v. GIFFORD-HILL & COMPANY, INC., et al. Charles M. GILL, Sr. v. . Pearly SIBLEY.
    Nos. 83 CA 0912, 83 CA 0913.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 28, 1984.
    Rehearing Denied Oct. 2, 1984.
    Writ Granted Dec. 7,1984.
    Charles M. Moore, Baton Rouge, for plaintiff-appellee, Charles M. Gill.
    Paul H. Due, Chas. Wm. Roberts, Baton Rouge, Calvin Fayard, Jr., Denham Springs, and Joseph H. Simpson, Amite, for Marilyn J.S. Sibley, et al.
    George F. Riess, New Orleans, and Arthur Macy, Hammond, for defendant-appellant, La. Power & Light.
    Peter T. Dazzio, Baton Rouge, for Gif-ford-Hill Co.
    Hugh M. Glenn, Jr., New Orleans, for Western World Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

These consolidated cases arose after an electrical accident which occurred on November 20, 1979, on property owned by Gifford-Hill & Company, Inc. (Gifford) located in Tangipahoa Parish. Pearly C. Sib-ley (Sibley) was electrocuted as a result thereof, and Charles M. Gill was injured. Sibley’s surviving wife brought suit for wrongful death, individually and on behalf of her minor children. Sibley’s major children also joined as plaintiffs. Gifford had hired Sibley to fabricate and install a sand and gravel plant on its property near the Tangipahoa River. The Sibley plaintiffs made Gifford, its plant manager, Ike Jenkins, Jr., and Louisiana Power and Light Company (LP & L) defendants in this suit. Gill brought suit for his injuries against Sibley, Western World Insurance Company, Inc. (Sibley’s insurer), and LP & L. Gill, at the time of the accident, was an employee of Gifford. The Sibley plaintiffs settled their ease against Gifford and Jenkins shortly before trial. Gill settled his claim against Sibley and Western World before trial. These cases were subsequently tried against LP & L, the sole remaining defendant. The trial court found that the accident was caused through the fault of LP & L and Gifford and cast LP & L in judgment after giving it credit for one-half of the damages. LP & L has brought this sus-pensive appeal but did not make quantum an issue. It does strenuously contest the trial court’s finding it guilty of any fault which may have caused or contributed to this accident.

FACTS

In late April, 1979, after a Gifford plant was washed out on the Tangipahoa River, Ike Jenkins, Jr., began making arrangements for the construction of a new sand and gravel plant. The old plant had been on the east side of the river, but Gifford decided to erect the new plant on the west side of the river. One of the initial requirements was to redeploy the electrical facilities. Jenkins got in touch with Paul Donald Fontenot, an executive with Earl L. Martin, Inc., which was engaged in the electrical construction business. In August of 1979, Martin constructed a power line approximately 8800 feet long to Gif-ford’s new plant for $23,748.69. Fontenot testified that he received all of his instructions as to design specification, location, etc., from Gifford and based on that information, constructed a three-phase with one neutral system which carried a load of 13.8/23.9 MV amp rating. LP & L provided the electrical service but did not contribute in any way, nor was it asked to, in the planning, design or erection of this system. This system, some 1.3 miles in length, received its service from LP & L at a point of delivery adjacent to LP & L lines situated on U.S. Highway 51. Immediately adjacent to the point of delivery, Gifford had installed a knife-type switch mechanism which could be employed whenever Gifford desired to de-energize its system. At the point of the accident, the vertical clearance between the ground and the three-phase lines was designed to be 40 feet. Measurements taken after the accident indicated, however, that the actual ground-to-wire measurement was 38 feet and 10 inches.

Pearly C. Sibley, who did business as P.C.’s Welding Service, was hired by Jenkins to do the welding, fabrication and layout work for the plant and gravel plants. Sibley supervised and used Gifford employees to do the work. Pursuant thereto, Sib-ley fabricated at the site a large steel A-frame which measured 26 feet and 5 inches in height, 10 feet at the bottom and 6 feet at the top. A concrete slab had been poured about a week earlier, and on the fateful morning in question, Sibley was to move the A-frame to the slab and fasten it to steel footings which had been embedded in the concrete. The frames when in place were the structural members for a sand classifier. The distance to be traversed was approximately 200 feet.

It was foggy at 6:30 a.m. when the Gif-ford plant began its daily operations on November 20, 1979. Jenkins instructed Sibley not to begin any hoisting operations until the fog lifted. While Sibley and Jenkins waited, they accumulated slings for use in attaching the A-frame to the Gabon 150 mobile crane (cherry picker) which had been selected to move the frame to the slab. They discussed how Sibley would attach the frame to the cherry picker. They also discussed the power lines, and Jenkins admitted that he said the lines were approximately 40 feet high. About 7:45 a.m., after hanging the frame on the cherry picker, they began to move the load. At that time Jenkins left to get some other material, and Pierre Mars, Jenkins’ assistant and plant foreman, remained to assist Sibley. Earlier, Mars suggested an alternate way of hanging the frame because he was troubled about the cherry picker being able to handle the weight considering the method Sibley was employing, but Sibley preferred his method.

Gill, a mechanic for Gifford, was not specifically involved in any other task that morning so was enlisted by Jenkins to help with the moving operations. Herbert Smith, the operator of the cherry picker, had been working near the river but was told by Jenkins to help Sibley. Smith, also, expressed concern about carrying the load in the manner Sibley chose but was told by Sibley to get down if he was afraid. Smith remained on the cherry picker which then began its journey toward the concrete slab. They moved approximately 160 to 180 feet, with Smith operating the cherry picker, Gill out front to the right and Sibley out front to the left, each holding the beam’s outside leg. Its inside leg was secured to the frame of the cherry picker. The cherry picker passed under the first phase of the line without incident. Then Sibley instructed Smith to stop and motioned him to boom left. When they resumed they were only 18 feet or so from their destination, and the accident occurred. Sibley was killed and Gill was burned.

No one witnessed the electrical contact with the boom. Smith’s vision was impaired by the boom and the beam. During the entire operation he had to rely on his flagman, Sibley. Gill was looking at Sib-ley. Mars was some 50 feet away, and Jenkins was further away.

Jenkins testified that he did not know if there had been contact between the line and the boom; that he heard a yell and ran to the scene; that when he got there, the boom had been lowered.

Gill testified that they were moving the H-beam, with Sibley directing; that the cherry picker was moving very slowly; that the ground was smooth and there was no bouncing; that he knew there were wires in the vicinity but was not worried about them and did not even look upward because he did not think they would touch; that at the time of the accident he was holding the frame to give it stability and keep it from swinging back and forth; that he did not know if there was contact between the wire and the boom.

Pierre Mars’ deposition was introduced by stipulation. He testified that he suggested that Sibley rig the frame to the cherry picker in a different manner but Sibley refused; that shortly after the moving began, he heard commotion, ran over to Gill who told him he had been shocked; that he looked up and saw the boom; that he could not say exactly how far it was from the wires but that it was within four inches; that he could hear a buzzing sound; that Smith, the operator, was going “all to pieces” inside the cab; that he told Smith to lower the boom about a foot which Smith did; that when the boom was lowered, the buzzing ceased; that the boom never contacted the wires; that the boom came closer to the second wire than the first wire because a little rise in the ground was encountered as they proceeded toward the slab, but the boom and the wire did not touch; that after the accident he checked the wire and could not see any scorched places.

Herbert Smith’s deposition was also introduced by stipulation. He operated the cherry picker on the morning in question. He testified that before the load was put on the boom, he commented that it was an awful lot of weight to be handled that way; that Sibley told him that if he was afraid to move it, to get down; that he could not see the wires from his position in the cab because the boom and the beam were in the way; that he looked to Sibley, the flagman, for directions and concentrated on him and the load; that his attention was directed toward maintaining control of the load; that he never thought about the wires; that the boom never contacted the wires because if it had it would have bothered the boom; that he felt nothing when it happened but knew something had gone wrong because he heard static from the wire.

THE TRIAL COURT’S FINDINGS OF FACT

The trial court stated in its Reasons for Judgment the following findings of fact:

“1) The boom of the crane never made actual contact with the wire. Instead, the late Mr. Sibley’s electrocution was caused by arcing of the electricity provided by L.P. & L. from the wire to the boom of the crane, most probably because of a surge of electricity at the critical moment when the boom was close to the wire.

2) The surge of electricity which caused the electrocution was caused by the equipment of L.P. & L.

3) The line was constructed by Earl Martin, Inc. in accordance with the initial design provided by Gifford Hill & Company.

4) The design of the line was unreasonably dangerous in two respects. First, it was located in such a manner as to cross the main roadway of the Gifford Hill plant where it could be dangerous to construction machinery, including booms of cranes, which would be used in the construction of the plant and which could only enter the construction area by means of that roadway. The line could have been designed and located in a different area or it could have been brought into the plant underground. Second, if the line was going to be located where it could interfere with the passage of cranes and other equipment, there should have been some means provided to shut off the electricity in the line at the job site rather than at a point several miles and twenty minutes travel from the job site.

5) The condition described above could have been prevented and/or eliminated at minimum expense and without affecting the supply of electricity.

6) Sibley was not negligent nor did he assume the risk of injury. The Court finds that he acted reasonably under the circumstances. He had been led to believe by Ike Jenkins, the Gifford Hill superintendent, that the line was approximately forty feet (40') above the road, so Sibley, who rigged up the A frame, reasonably felt it could pass safely under the line. In fact, the boom would have cleared the wire without any problem if the arcing had not occurred. Had the line in fact been forty feet (40') above the ground as Mr. Jenkins stated or had there not been an abnormal surge of electricity in the line, the electrocution would not have occurred.

7) Accordingly, the Court holds that Mr. Sibley’s death was caused by the combined fault of L.P. & L. and Gifford Hill. Since the Sibley plaintiffs have settled with Gif-ford Hill, defendant L.P. & L. is entitled to a credit in the amount of one-half of the damages.”

We have determined it necessary to consider only one issue raised on appeal by LP & L since it disposes of the case. , That issue is whether the trial court was factually and legally erroneous in its findings which attributed fault in this case to LP & L along with Gifford.

The trial court made two basic factual findings to find fault. Initially, it found that the accident was most probably caused because of a surge of electricity from LP & L equipment at the critical moment when the boom was close to the wire. Second, it found that the Gifford lines were unreasonably dangerous. We will treat- each proposition separately.

A. The surge theory. The accident occurred at the second-phase wire. This means that the boom and its load successfully passed under the first-phase wire without incident. Plaintiffs’ expert, Robert Nethkin, was of the opinion that one of four things could have caused the accident under the second-phase wire when nothing happened under the first-phase wire. Three of the four reasons he ruled out, all of which required contact between the wire and the boom: (1) uneven ground, (2) bounce of the crane, and (3) different heights between phases. He zeroed in on his fourth explanation, that of a voltage surge on the second phase. A voltage surge is an unusual electrical phenomenon, usually thought of in connection with lightning. If lightning strikes a line, there can be a surge or an overabundance of electricity passing through the line. If the voltage is too great for the designed capacity of the line, it surges out of the line and seeks ground through any nearby object. The facts of this case rule out lightning. Another type of surge can occur with switching operations. If an operator at a utility company’s control point closes a line leading to one branch of service and opens a line somewhere else, this may cause line-to-line electrical intensities. The operator is in a position to control the voltage flow, so usually nothing remiss happens. Accordingly, the chances of a damaging switching surge were placed in the statistical range of approximately 200 to 1. With a surge comes the potential of electrical arcing to a greater degree than normal. Increased voltage on a line, together with the presence of metal in the vicinity of the line at the time of the surge, can have disastrous consequences. To pursue the surge theory, it of course becomes necessary to rule out contact or virtual contact between the line and the boom. Nethkin was of the opinion that no contact had been made. All of the lay witnesses at the scene felt that there had been no contact between the line and the boom. The trial court found that the boom of the crane never made actual contact with the wire. In this finding, it was not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Nethkin’s surge theory finds no direct evidence in the record to support it. The records of LP & L, including its voltimeter and switching log data, show no unusual surges from switching operations on the day in question and just prior to the accident. Nethkin felt, however, that a surge was the only explanation because if there had been contact with the line, he would have expected more physical damage to the bodies of Sibley and Gill, as well as scorching to either the boom or the line, or both. Plaintiffs must therefore rely solely upon circumstantial evidence in order to prevail against LP & L since there is no direct evidence of a surge. When a plaintiff relies upon circumstantial evidence, the jurisprudence has established the following test as restated in Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754, 757 (1971):

In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
As we stated in the latter decision, 153 So.2d [at] 397: “Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.”

This accident could only have been caused by three things: (1) actual contact between the boom and the power line, (2) close proximity (within an inch) of the boom to the line without actual contact, causing an electrical arc, or (3) proximity (several inches) of the boom to the line at the same time that an extra surge of electricity was in the line.

Mars was on the scene almost instantaneously. He heard the buzzing sound, saw the boom close to the wire, ordered Smith to lower the boom, and noticed that once the boom was lowered the buzzing sound ended. This testimony certainly adds weight to the theory of arcing because of close proximity.

The trial court was clearly wrong in finding that there was “probably” a surge of electricity caused by LP&L’s equipment. There was no direct evidence of a surge, and the same circumstantial evidence which points to a surge also points to close proximity arcing. Confined as we are to the record, it is impossible to say that more probably than not a surge occurred when it just as reasonably could have been close proximity arcing. Plaintiffs’ theory against LP & L requires a factual finding of a surge emanating “upstream” from Gifford’s lines and traveling to the line in question. Plaintiffs failed to carry this burden of proof by a preponderance of evidence.

B. The unreasonably dangerous design. Nethkin was of the opinion that the general provisions of the National Electrical Safety Code were violated in this case. Those general requirements provide that equipment shall be installed and maintained so as to reduce the hazards to life. He felt that there were two design defects in Gifford’s lines: (1) there was no quick way to de-energize the power lines from Gifford’s plant because the de-energizing switches were several miles away, and (2) the lines crossed over the road.

The trial court found the line to be in an unreasonably dangerous condition. “Unreasonably dangerous” is a term of art, and in an Article 2317/strict liability analysis, it is used to indicate the condition of a thing which gives rise to liability on the part of the owner or custodian of that thing for damage caused by it.

We first note a factual inapposition between this case and Hebert v. Gulf States Utilities Co., 426 So.2d 111, 114 (La.1983), and Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); namely, LP & L is merely a supplier of electricity to the offending power line. Gifford was the owner of the line. The test which has been applied to suppliers of electricity was restated in Hughes v. Louisiana Power and Light Co., 94 So.2d 532 (La.App. 1st Cir.1956), and has been cited as authority since that time. Therein, that duty was articulated to be as follows:

The duty and responsibility of a mere generating company is generally held to be limited to making a proper connection and delivering the electric current to the purchaser’s wires and appliances in a manner which, so far as such delivery is concerned, protects life and property, and there is no duty of inspection to see that the purchaser’s wires and appliances are in a safe condition and kept so. Accordingly, where wiring or other electrical appliances on private premises are owned and controlled by the owner or occupant of such premises, a company which merely furnishes electricity is not responsible for the insulation or condition of such wiring or appliances and is not liable for injuries caused by their defective condition, to such owner or occupant, * * *. [However,] “knowledge of the defective and dangerous condition of a customer’s appliances will charge even a mere generator and supplier of electricity with liability for consequences, where current is thereafter supplied to such defective and dangerous appliances, in which case it is the energizing of the line with knowledge of the conditions, and not the conditions themselves, which forms the basis of liability”, 29 C.J.S., Electricity, § 57, pp. 611-613. See also 18 Am.Jur.Verbo “Electricity”, Sections 46-53, 62, 85, 100.

Hughes, 94 So.2d at 535.

The trial court’s finding Gifford at fault is not an issue in this appeal. However, that finding as to Gifford cannot be used to support the inference of a breach of the legal duty of LP & L, the supplier who had absolutely no knowledge or control over Gifford’s on-site operations.

The trial court was clearly wrong in finding LP & L guilty of any fault causing or contributing to the accident in this case.

CONCLUSION

For the reasons stated above, the decision of the trial court which found LP & L guilty of fault along with Gifford and casting it for one-half of the damages it awarded is reversed at plaintiffs’ cost.

REVERSED AND RENDERED.

      . The legs of the frame were made of 12-inch diameter steel. The cross member was a steel I-beam which measured 14 feet x 7 inches.

      . Two days earlier, Sibley had de-energized the lines when he moved the classifier to the concrete slab.

      . Several witnesses referred to the beam as an H-beam.


text:
    O.J. RENEGAR, Jr., et al. v. William B. MATTHEWS, Jr. et al.
    No. 84-CA-97.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 11, 1984.
    Writ Denied Nov. 16,1984.
    Franklin D. Beahm, Hammett, Leake & Hammett, New Orleans, for O.J. Renegar, Jr., M.D.
    Lawrence J. Smith, Levy, Smith & Gen-nusa, New Orleans, for Leonard Cole, Widower of Lalita Cole, Individually and as Natural Tutor of the Minor, Devin Sears Cole.
    Terry Christovich Gay, Christovich & Kearney, New Orleans, for Gregory Gid-man, M.D. and Naum Klainer, M.D.
    William Matthews, Metairie, Attorney Chairman.

      Before BOUTALL, CHEHARDY and GRISBAUM, JJ.
   BOUTALL, Judge.

This appeal involves the right of a patient to have a court reporter attend and record the deliberations of a medical review panel.

Under the provisions of L.R.S. 40:1299.-47, a medical review panel was convened to consider the malpractice claim of Lalita Cole against several health care providers, one of which was Dr. O.J. Renegar, Jr., appellee herein. During the proceedings, the patient requested of the attorney chairman that a court reporter be present during the panel’s deliberations in order to record what transpired therein. Over objection of Dr. Renegar, the attorney chairman granted the patient’s request. Dr. Renegar then filed the present suit in the Twenty-Fourth Judicial District Court for judicial review of that order. The court rendered judgment in Dr. Renegar’s favor finding no necessity for a court reporter to be present to record the actual deliberation of the panel, and this appeal followed.

The first issue before this court is whether the appeal taken is now moot. While the appeal was pending, the medical review panel proceeded with its deliberation and rendered one of the expert opinions provided in L.R.S. 40:1299.47(G). We do not consider the matter moot. The findings of the medical review panel do not constitute a final judgment but are in the nature of an expert opinion. Derouen v. Kolb, 397 So.2d 791 (La.1981). There has been no adjudication by the courts as to the merits of the patient’s claim against the furnishers of medical service and thus the weight and sufficiency of the opinion rendered is still a viable issue.

On the merits of the appeal, we affirm the opinion of the district court. The issue of the right to a court reporter to record the meeting of the panel prior to deliberation has been peremptorily settled by the Supreme Court in the case of McElveen v. LeJeune, 432 So.2d 263 (La.1983). The request in this case goes one step further. The request here is not of the meeting provided in sub-section (E) of the act, but of the deliberations of the panel at which the members may arrive at their expert opinion.

We find nothing in the medical malpractice law which requires an open deliberation or which permits the parties to attend and examine as in sub-section (E). Instead, the right is accorded in the statute in sub-section (H) to call and cross-examine the panelist as a witness, and that, consistent with the discovery devices available to depose witnesses, etc. seems an adequate safeguard of the rights of either party to the action. In short, we see little difference in placing a court reporter in the deliberation process or placing the parties or the attorneys in such a meeting. If the legislature had desired that the deliberation meeting be opened, it presumably would have declared it in the statute.

For the reasons above assigned, the judgment of the district court denying the right to have a court reporter attend and report the proceedings at the deliberation meeting of the Medical Review Panel is affirmed at appellant’s costs.

AFFIRMED.


author: BOWES, Judge.

text:
    Charlotte Hofmann Inzinna, wife of Joseph John INZINNA v. Joseph John INZINNA.
    No. 83-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 11, 1984.
    Rehearing Denied Oct. 17, 1984.
    Writ Denied Dec. 7,1984.

      Michael G. Fanning, Harahan, for Charlotte Hofmann Inzinna.
    David H. Seelig, New Orleans, for Joseph John Inzinna.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   BOWES, Judge.

Appellant Joseph John Inzinna has taken this appeal from a judgment of the District Court in a suit for partition of community property, decreeing that appellee Charlotte Hofmann Inzinna is entitled to one-half of the community’s share of her former husband’s military service pension and to one-half of the community’s share of his military life insurance policy. The judgment was amended after a motion for a new trial and on motion of plaintiff to reflect a stipulation by the parties that Mrs. Inzinna’s share of the above items would be placed at 37.5%. There is nothing in the record to suggest that plaintiff and defendant also stipulated as to the character or classification of the property in question. Rather, it appears that the agreed-upon percentage was merely the result of a compromise growing out of the fact that Mr. and Mrs. Inzinna were married only sixteen years of the twenty during which the pension accrued.

Joseph Inzinna enlisted in the United States Air Force in April, 1947. He and plaintiff were married in May, 1953. Mr. Inzinna retired from military service in 1969, while still married; the couple were divorced in May, 1980.

A consent judgment partitioning all of the community property, except for the military pension and life insurance, was reached in August, 1983; those two items were submitted to the court for a judicial determination as to their designation as separate or community. It is from that decision of the court that defendant appeals, outlining the following issues:

1. Does Appellee have a right to a community interest in the Military Pension of Appellee?
2. Does Appellee have a community right to the Disability Pension granted Appellee?
3. Can the Court enforce an Order requiring that Appellant maintain a life insurance policy issued by the United States Government on the life of Appellant, in full force and effect, with the Appellee’s only interest therein death benefits payable under said policy at the time of Appellant’s death?

It is clear from the wording of 10 U.S.C. § 1408, the applicable statute, that “disposable retired or retainer pay” excludes disability pay, and Mrs. Inzinna is not entitled to any portion of the pension which constitutes such disability pay.

The statute also permits courts of the individual states to treat the disposable retired pay as community or separate property according to the law of the particular jurisdiction. This section as amended, effective on February 1, 1983, reverses the Supreme Court decision of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed. 589 (1981), which decision held that military pensions were “personal entitlements”, (i.e., not community property) and on which appellant has partially relied.

Our brothers in the First and Second Circuits have recently held that in light of the aforementioned Congressional enactment, a court may treat military retirement pay in accordance with applicable state law, and that in Louisiana such retirement pension is community property. We agree. Louisiana jurisprudence has long held that the non-employed spouse has an interest in proceeds from such retirement annuities. See Sims v. Sims, 358 So.2d 919 (La.1978) for Justice Tate’s discussion of the history of such pensions as community property.

Moreover, counsel for appellee, in oral argument, emphasized that Mrs. Inzin-na seeks an interest only in those payments accruing subsequent to February 1, 1983.

Since that is the date on which the amendment to 10 U.S.C. 1408 became effective, as previously stated, it is evident that appellee is clearly entitled to an interest in said payments as a matter of law.

The insurance policy in question was acquired by defendant prior to his marriage and is therefore his separate property. A community claim in such a case is supportable only when the cash surrender value of the policy has increased during the community’s existence, and then only for one-half the extent of the increase m such cash surrender value. The 'proceeds of a life insurance policy are not subject to community claims, but pass by virtue of the contractual agreement between insured and insurer to the named beneficiary. T.L. James & Co. Inc. v. Montgomery, 332 So.2d 834 (La.1976).

The judgment is therefore amended to state that Ms. Inzinna is entitled, in view of the above-cited law and the stipulation, to one-half the extent of the increase in cash value during the community's existence or 37.5 per cent of the actual cash value of the National Service Life Insurance Policy.

We agree with the astute observation of the trial judge, as expressed in his reasons for judgment, except as indicated above. Accordingly, the judgment of the trial court is affirmed as amended. Costs of this appeal are taxed to appellant.

AMENDED AND, AS AMENDED, AFFIRMED.

      . 10 U.S.C. § 1408(a)(4) states in part:
      (4) "Disposable retired or retainer pay” means the total monthly retired or retainer pay to which a member is entitled (other than the retired pay of a member retired for disability under chapter 61 of this title) ...

      . 10 U.S.C. § 1408(c)(1) states:
      (c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

        . Jett v. Jett, 449 So.2d 557 (La.App. 1st Cir.1984) and Rohring v. Rohring, 441 So.2d 485 (La.App. 2nd Cir.1983).


author: GAUDIN, Judge.

text:
    Phillip D. MOUTON, and Henry C. Odenwald v. John T. CURTIS.
    No. 83-CA-715.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 11, 1984.
    A.W. Wambsgans, Cronvich, Wambsgans & Michalczyk, Metairie, for plaintiffs-appellants.
    Harold S. Bartholomew, Bartholomew & Jones, Metairie, for defendant-appellee.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

Appellants are Phillip D. Mouton and Henry C. Odenwald, who own homes close to the John T. Curtis Christian School and who filed suit in the 24th Judicial District Court alleging that the school had violated property and building restrictions.

The trial judge, noting “... that the property in question had been used on a regular basis for ‘business purposes’ ... for a period in excess of two years,” maintained an exception of prescription filed by the school and dismissed the suit.

On appeal, Mouton and Odenwald argue that the pertinent school property had not been used for business purposes for over two years and that the trial judge’s finding that intermittent recreational activities constituted an apparent business purpose was manifestly erroneous.

The record, however, supports the district judge’s findings, and we will not disturb them.

Four lots on Celeste Street are involved, in this litigation. When Curtis acquired these lots for school use in 1963, they were subject to this restrictive covenant:

“The property cannot be used for business purposes.”

Approximately 20 witnesses testified during a two-day trial about the school’s use of this property. Generally, petitioners’ witnesses said that the lots were only occasionally used for football practice or other school enterprises until 1980, when a so-called activities building was erected. The building, which houses a gymnasium and other school functions, precipitated the filing of this suit.

While Mr. Mouton and Mr. Odenwald, and supposedly the school’s other neighbors, overlooked activities on the property by Curtis students, they did and do object to the construction of the building measuring 56 feet by 216 feet. As appellants state in their brief: (The plaintiffs gave an inch and the defendant “Curtis” takes a yard.)

Witnesses called-by the school described regular school activity on the lots. While none said that the property was used 365 days a year, they did say that the area was used, except on rainy days, for football practice from August to December and also during the spring months, for daily band practices during the fall semester and again in the spring, for the school fair, for track team practice in the spring, for physical education classes and for recess periods during actual school hours.

The school also owns a house at 207 Celeste Street, which is adjacent to the four subject lots. This house has been used since 1966 for kindergarten activities and for storing athletic equipment. It also has restroom facilities.

Appellants cite Gwatney v. Miller, 371 So.2d 1355 (La.App. 3rd Cir.1979), to wit:

“It is not every violation of a building restriction which will constitute its abandonment. Insubstantial, technical or infrequent violations which do not manifest an intent to subvert the original plan or scheme of development will not constitute an abandonment of the restrictions.”

Here, however, the trial judge did not conclude that school undertakings were either insubstantial, technical or infrequent. In his assigned “Reasons for Judgment,” the judge said:

“The Court is convinced from the testimony of the witnesses that the property in question had been used on a regular basis for ‘business purposes’, even prior to construction of the gym, for a period in excess of two years. The Court further finds, that the use of the property for ‘business purposes’ was noticeable and apparent to anyone in the area.”

The record does contain a reasonable factual basis for the trial judge’s findings, and we cannot say that the findings were manifestly erroneous and should be upset. See Arcenaux v. Domingue, 365 So.2d 1330 (La.1978).

If a violation is “noticeable and apparent,” LSA-C.C. art. 781 sets out a two-year prescription period, as follows:

“No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After a lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.”

We hold, as did the district judge, that regular and continuing use of property by a school for school-related activities can be a “business purpose” and can violate a restrictive covenant encumbering real estate. Once the violations become “noticeable” as stated in Art. 781, a person aggrieved must file suit within two years.

Thus, the maintaining of the exception of prescription, based on the trial judge’s findings of fact, was proper, and we affirm the judgment appealed from. Appellant is to bear all costs.

AFFIRMED.


author: BOWLING, Justice, for the Court:

text:
    Alvin CULBERSON v. STATE of Mississippi.
    No. 55031.
    Supreme Court of Mississippi.
    Sept. 19, 1984.
    Joseph Leray McNamara, Wise Carter Child & Caraway, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III and Charles W. Maris, Jr., Sp. Asst. Attys. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   BOWLING, Justice, for the Court:

Appellant Alvin Culberson twice has been convicted of capital murder and sentenced to death. On his first appeal [Culberson v. State, 348 So.2d 1025 (Miss.1977)], his conviction was reversed because he was not given a bifurcated trial as required in capital murder trials under the decision of this Court in Jackson v. State, 337 So.2d 1242 (Miss.1976). On the second appeal, [Culberson v. State, 379 So.2d 499 (Miss.1979)], this Court affirmed Culberson’s conviction and sentence of death.

After exhausting all required remedies in this Court, Culberson filed a Petition for Permission to File a Petition for Writ of Error Coram Nobis with the Circuit Court of Harrison County, in which court appellant was convicted and sentenced. The petition initially filed here was pursuant to the provisions of Mississippi Code Annotated, Section 99-35-145 (1972). The petition proposed to be filed in the Circuit Court of Harrison County alleged a number of reasons it should be granted.

This Court, after careful consideration, found that the petition to file a petition for writ of error coram nobis should be granted. [412 So.2d 1184 (Miss.1982) ].

The opinion and order granting appellant’s petition provided that “[accordingly, we grant the petition for a writ of error coram nobis and remand the case for an evidentiary hearing to determine whether Culberson told his attorney he wanted to testify as a witness in his own behalf and whether the attorney disregarded the request and refused to permit Culberson to testify at either the guilt phase or sentencing phase of his trial.” The original petition filed before this Court, as stated, set out a large number of grounds by appellant alleging that his trial attorney was ineffective. One of these many grounds was that set out above in this Court’s order granting the petition on a limited basis. We found that there was no merit to the other allegations of appellant’s petition.

The Circuit Court of the First Judicial District of Harrison County received evidence ou the petition for writ of error coram nobis and after conclusion of the trial, rendered its opinion on November 1, 1982, finding as follows:

1. Culberson told his attorney he wanted to testify as a witness in his own behalf.
2. The attorney did not disregard the defendant’s request but advised him against it because of the previous convictions of the defendant, and for this reason the defendant did not testify.
3. The attorney did not refuse to permit Culberson to testify at either the guilt phase or the sentencing phase of his trial.

On the appeal, appellant propounds numerous assignments of error alleged to have been committed by the lower court, the first being “Culberson was unconstitutionally denied the right to testify.”

We consider only this assignment of error for the following reason: Under this Court’s order granting permission to file the Petition for Writ of Error Coram No-bis, the court at that time fully considered all reasons for requesting the petition and found that only one question could or should be considered by the trial court under the petition. This was, as hereinbefore stated and as stated in the first assignment of error now before us, that Culberson was allegedly refused permission to testify at his trial.

All of the other assignments of error now presented in this appeal either previously have been disposed of by this Court or all are procedurally barred, except the question granted as to whether or not Cul-berson was refused permission to testify. A careful study of the opinions heretofore cited confirms these statements.

We carefully have reviewed the evidence submitted to the trial court on the issue it had before it and find that the evidence fully supports the court’s order hereinbe-fore quoted.

We therefore find there is no merit to the appeal from the lower court’s order denying appellant’s petition for writ of error coram nobis, and that court’s order is hereby affirmed.

The original petition for permission to file the petition for writ of error coram nobis was filed as stated under MCA § 99-35-145 (1972). On April 17, 1984, there was signed into law Chapter 378, Senate Bill Number 2186, styled “Mississippi Uniform Post-Conviction Collateral Relief Act.” This statute provided that § 99-35-145 “is hereby repealed.” The act further provides that it would be effective from and after its passage on April 17, 1984. This statute provided that on affirmance by this Court on appeal for post conviction relief, we shall fix a date, not more than fourteen days distant, for the execution of the stayed death sentence. Repealed MCA § 99-35-145 (1972) required the execution date be set not more than twenty-one days distant. We therefore set the date of execution of the death sentence for appellant Alvin Culberson for Tuesday, October 2, 1984, and order that on that date his execution be carried out according to law.

WALKER, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and PRATHER, J., not participating.