text:
    Thomas P. ANZELMO, Sr., et al. v. LOUISIANA COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES, et al.
    No. 82 CA 0924.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      David A. Marcello, New Orleans, for plaintiffs-appellants Thomas P. Anzelmo, Sr., et al.
    R. Gray Sexton, Louisiana Com’n on Ethics for Public Employees, Baton Rouge, for defendant-appellee Louisiana Com’n on Ethics for Public Employees.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal of rulings by the Louisiana Commission on Ethics for Public Employees and the district court that the Commission has jurisdiction over Thomas P. An-zelmo, Sr. and Donald Anzelmo, who challenged the jurisdiction of the Commission after being charged with violations of Sections 1113(A), 1114(A) and 1119(A) of the Code of Governmental Ethics, La.R.S. 42:1101 et seq.

These charges are based on the fact that the professional law corporation which employs the Anzelmo brothers, McGlinchey, Stafford, Mintz and Cellini, represents the City of New Orleans on a contractual basis, and the Anzelmos’ father, Salvador Anzel-mo, is the City Attorney for New Orleans and head of the City’s Law Department. The alleged violations are of the following provisions.

No public servant, excluding any legislator and any appointed member of any board or commission, member of such public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such public servant.

La.R.S. 42:1113(A).

Other than a legislator, each public servant and each member of his immediate family who derives any thing of economic value directly, through any transaction involving the agency of such public servant or who derives any thing of economic value of which he may be reasonably expected to know through a person which (1) is regulated by the agency of such public servant, or (2) has bid on or entered into or is in any way financially interested in any contract, subcontract, or any transaction under the supervision or jurisdiction of the agency of such public servant shall disclose the following....

La.R.S. 42:1114(A).

No member of the immediate family of an agency head shall be employed in his agency.

La.R.S. 42:1119(A).

A public hearing on this matter was scheduled for September 17, 1982. At this time the Anzelmo brothers’ petition for a temporary restraining order based on the Commission’s lack of jurisdiction was denied and hearing began with arguments concerning the question of the Commission’s jurisdiction. After considering the various arguments, the Commission found that the exercise of jurisdiction over the Anzelmo brothers as persons other than public employees under La.R.S. 42:1101 et seq. was proper. After considering other preliminary matters, the Commission then continued the hearing until October 22. The Anzelmos requested a preliminary injunction, which was denied by the district court, and a stay of further proceedings pending disposition on appeal, which was granted by the district court. Subsequently this appeal was filed and oral arguments were heard.

JURISDICTION OVER OTHER PERSONS

Appellants contend that the trial court erred in finding that the Commission has jurisdiction over persons other than public employees and raise several arguments in support of their contention. They first argue that the Louisiana Constitution of 1974 requires the legislature to enact a code of ethics that will apply only to public servants, as evidenced by Article 10, Section 21 of the 1974 Constitution, as well as the Constitutional Debates.

We find, however, that such was not the purpose of the constitutional mandate. Article 10 Section 21 of the 1974 Constitution provides:

The legislature shall enact a code of ethics for all officials and employees of the state and its political subdivisions.

There is no language in this Article which forbids the promulgation of a code of ethics that is applicable to persons other than public servants. “The Legislature is supreme except when restricted by the Constitution; it may do everything that the Constitution does not prohibit.” Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So.2d 900, 903 (1967). Therefore, since the Constitution does not prohibit the legislature from enacting a Code which regulates the conduct of persons other than public servants, the inclusion of other persons in the Code is constitutional. Furthermore, the purpose of such a code, as discussed in the Constitutional Debates, is to establish ethical standards for public servants and to protect against conflicts of interest. The- concern expressed in the debates over whether the Code should include local public officials and employees or be limited in its application to state public officials and employees dealt with problems of interference with home rule, not a desire to formulate a very narrow Code of Ethics. Yol. VII, Records of the Louisiana Constitutional Convention of 1974: Convention Transcripts, p. 1280. Additionally, it was stated that the details of the Code would be left up to the legislature. Id., at 1276, 1284 and 1290. It must be presumed that since the Article did not prohibit the legislature from including other persons in the ambit of the Code, the legislature can constitutionally include such persons in the Code.

The appellants’ second argument is that the jurisdictional section of the Code strictly limits the jurisdiction of the Code to public employees, as there is no reference to any persons other than public employees in this Section. This argument must be rejected, however, because such a limited construction of this Section would render the Code inapplicable not only to persons other than public employees, such as the Anzelmo brothers, but also to elected officials, as they, too, were not referred to in this Section. The provisions of the Code should be construed so as to effectuate legislative intent whenever possible. See Louisiana Independent Auto Dealers Association v. State, 295 So.2d 796, 802 (La.1974). The section in question enables the Commission to administer and enforce the provisions of the Code. Read as a whole, it provides for the regulation of the conduct of not only public employees, but also that of elected officials and persons other than public servants. If the intention was anything less, the legislature would not have included sections in the Code that deal with persons other than public servants, or more particularly, members of a public servant’s immediate family.

A law must be construed as a whole. Every part of a Statute must be given effect where such a result can be reasonably achieved. It cannot be presumed that the Legislature enacted meaningless clauses and phrases, [citation omitted]

Groves v. Board of Trustees of Teachers’ Retirement System of Louisiana, 324 So.2d 587, 594 (La.App. 1st Cir.1975), writ denied, 326 So.2d 378, 380 (La.1976).

The policy of the Code, which indicates legislative intent, was declared as follows:

It is essential to the proper operation of democratic government that elected officials and public employees be independent and impartial; that governmental decisions and policy be made in the proper channel of the governmental structure; that public office and employment not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired when a conflict exists between the private interests of an elected official or a public employee and his duties as such ....

La.R.S. 42:1101(B).

The general purpose of the Code, therefore, is to prevent conflicts of interest between public servants and those in the private sector. While the Anzelmo brothers contend that this Code is applicable only to public employees or officials, it is clear that the legislative intent of the Code cannot possibly be so restricted in its application. If the behavior of those in the private sector who participate in unethical conduct with public servants cannot be regulated and chastised, the Code and its purposes are meaningless. In his oral reasons for judgment, the trial judge, in upholding the Commission’s jurisdiction over this matter, stated:

One of the areas in which the Legislature sought to prohibit certain types of activities dealt with those interactions between public servants and members of their immediate family .... Reading the entire Code of Ethics as a whole [sic], it appears that the Legislature wished to create an independent governmental agency or body that could effectively deal with the attempts of politically and financially powerful and resourceful other persons who sometimes endeavor to improperly influence governmental conduct.

We agree. We hold that the legislature intended the Code to apply to persons other than public servants, and not be restricted in its application to only public employees. See Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983).

Another argument put forth by the Anzelmo brothers is that the difference between the former Code and the present Code evidences legislative intent to change the application of the Code to exclude other persons. In support of their position they cite the Kane case, which was decided under the former Code, and the court’s reliance in Kane of the specific mention of “other persons” in the preambles to the earlier acts. The appellants’ contention is that the legislature is presumed to have been cognizant of both the earlier codes and the Kane decision, and since the two statutes are worded differently, the intent was to change the law. If a change in the law was sought, it is hard to comprehend why the legislature nevertheless included provisions dealing with the conduct of persons other than public servants. Consequently, the presumptions urged by the Anzelmos cannot be made and it must be concluded that by including.“other persons” provisions in the Code, the legislature did intend to regulate unethical behavior between public servants and those in the private sector.

Accordingly, we find that the legislature statutorily granted to the Commission jurisdiction over persons other than public servants, and reject this specification of error.

UNCONSTITUTIONALITY OF CODE OF ETHICS

A violation of Article 3, Section 15(A) of the 1974 Constitution is the second error alleged by the appellants. This Article, in pertinent part, provides:

Every bill ... shall be confined to one object. Every bill shall contain a brief title indicative of its object ....

The purpose of this Article is to ensure that the title provide notice as to the scope of the statute. Appellants contend that the title to the Code lacks specific mention of “other persons”; however, “[t]he title of an act is not to be strictly or technically construed.” Louisiana Independent Auto Dealers Association, at 802. Article 3, Section 15 requires a brief title indicative of its object, not exhaustive detail of each section. This principle was recognized by this Court in Groves 324 So.2d at 595:

The constitutional provision in question does not require the title of an act to be an index of its contents, but only that the object of the act be expressed in general terms. All things proper and necessary to carry out the general intent and purpose of the act are deemed within the scope of its title. The applicable constitutional provision is deemed violated only when the variance in the provisions of the act is palpable and totally irreconcilable with the object as expressed in the title .. . [citations omitted].

We find that the title to this Code gives fair notice of the contents of the body. Prohibitions against improper dealings between a public servant and members of his immediate family are well within the intent of the Code as evidenced by its title. Additionally, it should be noted that such provisions are essential for the Commission to effectively and comprehensively monitor the conduct of public servants, particularly in situations where conflicts of interest arise.

It cannot be said that the provisions of the Code pertinent to the immediate family members of a public servant are irreconcilable with the purposes of the Code as set forth in its title. Indeed, such provisions are necessary in order for the goals of the Code to be accomplished, and are within the scope of the title.

It is contended further by the appellants that as applied to persons other than public employees, the Code of Ethics is unconstitutionally vague. Our review of the Code of Ethics reveals to us that it is not unconstitutionally vague. The provisions, when read as a whole, adequately provide a person of fair intelligence with fair notice of what conduct is prohibited or required. See Connick v. Lucky Pierre's, 331 So.2d 431 (La.1976). The Code clearly forbids nepotism (La.R.S. 42:1119) (A)) and requires financial disclosure (La.R.S. 42:1114(A)); one of its general purposes is to protect against conflicts of interest. Such provisions provide adequate notice of the Code’s objectives.

CONSTRUCTION OF CODE

Appellant’s fourth specification of error is that the Code must be strictly construed, particularly La.R.S. 42:1131(C), the jurisdictional section and that under a strict construction, the Code does not apply to them. There is no merit to this specification of error. The Code of Ethics clearly applies to persons other than public employees as well as public employees, as we have fully discussed above in this opinion.

INJUNCTIVE RELIEF

We further find that the trial court properly denied the request of the Anzelmo brothers for a preliminary injunction.

In cases of this nature, injunctive relief is not available as a remedy unless the petitioner shows that he will suffer irreparable injury if such relief is not granted. La.C.C.P. arts. 3601, 3602.

The purpose of an injunction is to prevent irreparable harm. Irreparable harm is the sine qua non for any form of injunctive relief. Arbour v. Total CATV, Incorporated, 400 So.2d 1155 (La.App. 1st Cir.1981), writ denied 404 So.2d 264 (La. 1981).

Irreparable injury is considered to be a loss sustained by an injured party which cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard. National Pacific Corporation v. American Commonwealth Financial Corporation, 348 So.2d 735 (La.App. 1st Cir.1977).

The jurisprudence requires the applicant for injunctive relief to make a prima facie showing that he will prevail on the merits of the case. Price v. State Department of Public Safety, License Control and Driver Improvement Division, 325 So.2d 759 (La.App. 1st Cir.1976).

On the issue of the trial court’s denial of the preliminary injunction, we observe that the granting of such injunctive relief is merely an interlocutory judgment calculated to prevent a party from suffering irreparable injury pending a final determination on the merits of his rights and in such cases to generally maintain and preserve the existing status pending a trial or hearing of the ultimate issues. The question of whether the preliminary injunction should be granted or denied is addressed to the sound discretion of the trial court, or trier of fact. Lamb v. Quality Inspection Services, Inc., 398 So.2d 643 (La.App. 3rd Cir.1981). Its decision will be disturbed on review only in cases where a clear abuse of his discretion has been shown. National Pacific Corporation v. American Commonwealth Financial Corporation.

We find that the Anzelmos have not and will not suffer irreparable injury if the administrative process continues as the Commission does have jurisdiction over these parties.

From our review of the record, we conclude that the petitioner’s evidence was not sufficient to show that the Commission lacked jurisdiction over them or to demonstrate irreparable injury to them, thus we find that the trial court did not abuse its discretion in denying a preliminary injunction.

Accordingly, for the above reasons, we affirm the judgment of the court below, dismissing petitioners’ request for injunc-tive relief, with costs to petitioners-appellants.

AFFIRMED.

      . La.R.S. 42:1131(C) provides that “The Commission shall administer and enforce the provisions of this Chapter and the regulations, rules and orders issued hereunder with respect to public employees.”

      . Connick is distinguishable from the case at bar; La.R.S. 13:4711, which permitted the enjoining of the “maintenance of a nuisance,” was declared unconstitutional and void for vagueness because the phrase “... without instituting and proceeding with the legal action necessary to enjoin ...” did not give adequate notice of what action must be taken to avoid the issuance of an injunction or order of abatement. In contrast, the Codal provisions attacked by the Anzelmos clearly state what conduct is prohibited (i.e., nepotism) and what conduct is required (i.e., financial disclosure).


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Richard VALENTI v. STATE FARM FIRE & CASUALTY CO., et al.
    No. 82 CA 0927.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Katherine Wheeler, Baton Rouge, for plaintiff-appellant Richard Valenti.
    Kenneth L. Riche, Baton Rouge, for defendant-appellee Fred R. Griggs.
    Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Fire & Cas. Co. & Dr. Humberto Arriaga.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

Two major issues are presented in this case. One, do the facts indicate a certain lighting fixture was defective, thus causing the homeowner to be strictly liable under 2317 for damages caused by the fixture? Two, is a contractor who renovates a room required to alter the ceiling height so as to meet the minimal requirements of the building code?

There was much conflicting testimony concerning the facts. Plaintiff, Richard Valenti, and A1 Arriaga were high school friends. On February 28, 1980, the boys (both approximately 19 years old), were “horseplaying” in Al’s bedroom. The horseplay consisted of each boy trying to slap the other’s nose. At some point during their game Richard raised his right arm and came into contact with an overhead glass light fixture. The glass shattered and Richard lacerated several tendons in his wrist.

Richard filed suit against the owner of the home, Dr. Humberto Arriaga, his insurer, State Farm Fire and Casualty Company, and Fred Griggs, the general contractor responsible for renovations made to the Ar-riaga home.

After a trial on the merits the court rendered judgment in favor of defendants and against plaintiff. The court noted the facts were in hopeless conflict but made a credibility judgment concerning several things.

We first consider whether or not plaintiff proved the lighting fixture was defective. There was conflicting testimony as to the type of lighting fixture involved. Plaintiff testified the fixture was a chandelier type, suspended from the ceiling by a rope or chain. He described it as hanging so low as to be only four inches above his head. This description of the fixture was corroborated by one of plaintiff’s witnesses, another high school friend.

Defendants and their witnesses testified the fixture was not suspended but attached directly to the ceiling. It consisted of four bulbs covered by a glass plate surrounded by a wooden frame; the total depth of the fixture being no more than six inches. A photograph of the fixture as it was several days before trial was introduced. Defense witnesses all testified this was the very fixture involved in the accident, the only difference being the fixture no longer had the glass plate and wooden frame attached to it. We quote the trial court:

“The Court must make a credibility determination as to the type of fixture involved. The preponderance of the evidence on this issue favors defendants and the Court so finds.”

It is well settled that the reviewing court should give great weight to the conclusions of the trier of facts and should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though other evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977), rehearing denied 1977.

In order to find liability under article 2317 the injured party must establish the thing which caused the damage was in the care or custody of the defendant; the thing had a vice or defect, i.e., it caused an unreasonable risk of injury to another; and the injury was caused by the defect. Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied 1976; Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980). As to whether or not the thing (light fixture) was defective, the court commented as follows:

“The Court finds no liability under Article 2317, above, because the thing (fixture) did not pose an unreasonable risk to others in ordinary usage. The Court finds that the fixture did not hang a foot or more below the ceiling as contended by plaintiff, but rather was only approximately six inches below the ceiling. The edges of the glass were protected and enclosed by a wooden frame. Whatever risk may have been posed by such an appurtenance was not unreasonable in normal usage but only slight, if at all.”

We agree with this conclusion. The light fixture, protruding only six inches from the ceiling, was 82 inches from the floor (6 feet 10 inches). Under normal circumstances, this light fixture would pose no unreasonable risk to those in the room. The damage which occurred took place under unusual circumstances. The boys in the room were engaged in horseplay of a vigorous nature and as a part of the game each person tried to prevent the other from slapping his nose. Obviously, such an activity involves greater motion and less regard for the surroundings than would most usual activities. Therefore we are in complete agreement that the light fixture, in and of itself, posed no unreasonable risk and thus there is no liability for the homeowner under article 2317.

The second major issue is whether or not a contractor, who renovates an existing structure, must take whatever steps necessary to meet minimum building code requirements. Mr. Griggs, the contractor in this case, testified he did not alter the ceiling of Al’s room (formerly the garage) but simply painted it and had an electrical subcontractor install the overhead light fixture. Defendants called as a witness, Leon Rodriguez, the assistant building official for the permits and inspections department of the City-Parish. He was accepted by the court as an expert in building inspections. He testified that because the renovation in question was done in 1979, the applicable building code was The National Building Code, 1967 edition. Although that code, under a section entitled “Light & Ventilation” calls for a “clear height of not less than 7 feet 6 inches,” Mr. Rodriguez testified the code did not apply to existing rooms. In other words, a contractor building a new structure would be bound by the minimum height, but a contractor simply refurbishing an existing room had no obligation to change the height of the ceiling.

Appellant, on the other hand, contends that the code does apply to existing structures and cites section 500.2 which reads as follows:

“a. No building, including existing buildings, shall be altered, added to or rearranged so as to reduce the size of a room or the amount of window space to less than that required by this article, or so as to create an additional room, unless such additional room is made to conform to the requirements for rooms in this article, except that such rooms may be of the same height as existing rooms in the same story.” (Emphasis added.)

Mr. Rodriguez did not specifically address this section at trial. However, for the reasons below, we find it unnecessary to determine whether or not the code applies to the renovations in this case. Assuming arguen-do the code does apply and Mr. Griggs breached the provision of the code requiring the 7 foot 6 inch clearing, we note this does not mean he is liable automatically.

In cases involving alleged liability as the result of the violation of a statute, the essence of proximate cause is whether the risk and harm encountered are within the scope of protection of the statute. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La. 1962), rehearing denied 1962. In the present case, Mr. Rodriguez made it- clear that in his opinion the purpose of the 7 foot 6 inch clearing requirement was to insure proper ventilation and light. Therefore, if the damage had been caused by something related to lack of ventilation or light, we would have no difficulty saying the violation of the ordinance was the proximate cause of the injury. However, to the contrary, the damage which occurred was caused allegedly by the lack of proper distance between the ceiling and the floor and the concurrent lack of distance between the bottom of the lighting fixture and the floor. The trial court commented on this issue as follows: “It is clear that the code does not purport to regulate ceiling heights from the standpoint of danger to persons from overhead electrical fixtures.” The risk and harm encountered were simply not within the scope of protection of the statute; therefore Mr. Griggs is not liable for the damage.

An older Louisiana case held that to impose liability for an injury claimed to be the result of a violation of a statute it must appear that compliance therewith would have prevented the injury. Picou v. J.B. Luke’s Sons, 204 La. 881, 16 So.2d 466 (La. 1943). In this case we cannot conclude that had the ceiling (and the light fixture) been a mere two inches higher the injury would not have occurred. This is so because the point of contact between the plaintiffs body and the light fixture was the plaintiffs wrist. Obviously, the wrist is not the most extreme point of a person’s arm, but is followed by a hand which measures at the very least 6 inches. It is not, therefore, reasonable to conclude that if the ceiling had been two inches higher plaintiff would not have made contact with the light fixture. Indeed, it is very likely that he would still have contacted it, the only difference being the point of contact would have been some two inches higher, somewhere on his hand.

In addition to the two major issues discussed herein, appellant raises two minor issues. First, he contends the court erred in concluding plaintiffs conduct would bar his recovery even if either defendant were found to be liable.

Although the trial court found plaintiff to have been at fault, this determination was somewhat superfluous in that the court also found defendants to be not liable. Obviously, since we agree defendants are not liable, it is technically irrelevant whether or not plaintiff was at fault. But in order to avoid any confusion that might arise from failure to treat this aspect of the case, we state for the record we agree with the trial court the actions of plaintiff would bar his recovery even if it were found that either defendant was responsible for the damage.

The trial court found as a fact that the accident occurred while the boys were engaged in mutual horseplay. Plaintiff’s testimony indicated he was very familiar with Al’s room and had even touched the light fixture on a previous occasion. As the court noted, even if the light fixture was suspended from the ceiling as plaintiff contended, plaintiff should have been aware of the obvious risk it would pose to anyone engaging in horseplay or reckless activity in the room. We quote from the trial court:

“This being so, plaintiff’s admitted familiarity with the room and its furnishings, especially the light fixture which [he testified] he could touch by merely raising his hands above his head, should have alerted him to whatever risk or danger the fixture posed. Plaintiff should, under circumstances narrated by him, have realized that sudden upward flinging of his arms would bring them into contact with the fixture.”

Finally, appellant’s fourth argument is that the trial court erred in denying a new trial. The new trial was requested so that plaintiff could introduce an expert to rebut testimony introduced at trial concerning the applicability of the building code to the renovations on the Arriaga home.

The transcript of the trial indicates the court held open the case for seven days to allow counsel for plaintiff to notice a deposition of an expert. Apparently no deposition was noticed within this time period, therefore the court proceeded to decide the case. We can find no reason to grant a new trial under these circumstances. Appellant was granted ample opportunity to produce the evidence he sought and failed to act timely.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . The bedroom, which had recently been converted from a garage, had a ceiling which was 88 inches (7 feet 4 inches) high. This was 4 inches lower than the ceiling in the adjacent hall and 11 inches lower than the ceiling in the adjacent playroom.

      . Plaintiff was 5 feet 5 inches tall.

      . Appellants contend the homeowner is also liable for violations of the building code. For the same reasons we find no liability on the contractor’s part, we find none for the homeowner.

      . Mr. Rodriguez testified the National Building Code had been adopted by ordinance of the City-Parish.

      . Plaintiffs actions could be classified as “victim fault” under article 2317 or contributory negligence under article 2315.


author: LANIER, Judge.

text:
    QUINTANA PETROLEUM CORPORATION v. ALPHA INVESTMENTS CORPORATION, et al.
    No. 82 CA 0936.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      James R. McClelland, Aycock, Horne, Caldwell, Coleman & Duncan, Franklin, for plaintiff.
    Bernard E. Boudreaux, Jr., Bauer, Dar-nall, McNulty & Boudreaux, Franklin, for Norma Lee Luke Terrell.
    Terry G. Breaux, Conery & Breaux, Franklin, for P.F. Industries, Inc., Seaman-Crouse, Ltd., Joseph A. Seaman and Edwin L. Crouse.
    Robert P. Führer, Morgan City, for Alpha Investments Corp.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is a concursus proceeding (La.C.C.P. arts. 4651-4662) brought by Quintana Petroleum Corporation (Quintana) to determine the ownership of a 25% mineral interest in certain lands located in St. Mary Parish, Louisiana. Impleaded in this suit for having conflicting claims are Alpha Investments Corporation (Alpha), P.F. Industries, Inc. (PFI), Seaman-Crouse, Ltd., a partnership composed of Joseph A. Seaman and Edwin F. Crouse, and Norma Lee Luke Terrell. In its answer, Alpha alleged that PFI, Seaman-Crouse, Ltd., Joseph A. Seaman, Edward L. Crouse and/or Norma Lee Luke obtained this mineral interest from Alpha by fraud. PFI, Joseph A. Seaman and Norma Lee Luke Terrell filed a motion to strike the allegations of fraud and pled the two year prescription of La.C.C. art. 3543 to bar an attack by Alpha on a sheriff’s sale in their chain of title. The trial court denied the motion to strike the allegations of fraud and sustained the exception of prescription. Alpha commenced an appeal to this court from the judgment sustaining the exception of prescription, but subsequently abandoned this appeal, and that judgment is now final. PFI, Joseph A. Seaman and Norma Lee Luke Terrell filed a motion for summary judgment contending that they were the owners of the 25% mineral interest in the proportions of 45%, 45% and 10% respectively. The trial court granted the summary judgment as prayed for. This suspensive appeal followed.

FACTS

On or about November 3, 1964, Everett M. Luke granted an oil, gas and mineral lease to Humble Oil and Refining Company on 25% of the minerals (Luke mineral interest) in or under approximately 472.9 acres of land located in St. Mary Parish, Louisiana. In 1966, Quintana completed a well (Maryland No. 2-A) on land immediately adjacent to this property and a portion of the property was included in a conservation unit created around this well.

On September 14, 1972, Reisfeld & Son, Inc. (Reisfeld) filed a suit against Lone Star Packing Company, Inc. (Lone Star), Everett M. Luke and Paul Sidney Luke in the Sixteenth Judicial District Court, Parish of St. Mary. This suit contended that Lone Star had an outstanding balance on an open account with Reisfeld and that Everett M. Luke personally guaranteed payment of the account. Coupled with the open account claim was a revocatory action (La.C.C. arts. 1968 et seq.) contending Everett M. Luke transferred certain properties located in St. Mary Parish to Paul Sidney Luke and the purpose of these transfers was to preclude Reisfeld from executing against them for payment of the account. The properties initially listed did not include the Luke mineral interest. Reisfeld requested that the transfers by Everett M. Luke to Paul Sidney Luke be set aside as fraudulent. On October 11, 1972, Lone Star, Everett M. Luke and Paul Sidney Luke answered this suit, and on October 30, 1972, the trial judge fixed the case for trial on January 30, 1973. On October 19, 1972, Norma Lee Luke and Everett M. Luke were judicially separated.

On December 28, 1972, a document entitled “CONTRACT OF SALE OF MINERAL INTERESTS” was recorded in the conveyance records of St. Mary Parish. This contract purportedly transferred all of the Luke mineral interest to Alpha.

On January 22,1973, Reisfeld filed a supplemental petition for a writ of attachment to seize the Luke mineral interest. This pleading contends that “... Everett M. Luke has entered into a contract to sell to Alpha Investments Corporation of Pharr, Texas, certain mineral rights, interest and leases ... ”, and that the purpose of Luke was to dispose of the property to give an unfair preference to one of his creditors and to put the property beyond the reach of other creditors. Attached to the supplemental petition was a copy of the Luke-Alpha agreement recorded on December 28, 1972. This supplemental petition did not make either Norma Lee Luke or Alpha a party to the proceedings and did not seek a revocation of the Luke-Alpha agreement. The trial court granted the attachment and the Luke mineral interest was seized by the sheriff on January 23, 1973. On January 29,1973, Paul Sidney Luke was dismissed as a party defendant from the suit. On February 1, 1973, Lone Star and Everett M. Luke answered the supplemental petition. On February 2, 1973, Reisfeld filed a supplemental petition alleging that Reisfeld was entitled to seize by way of garnishment any proceeds of the contract of sale between the Lukes and Alpha which might be in Alpha’s possession. Reisfeld further alleged that it feared that Alpha would pay over to the Lukes the consideration recited in the contract of sale and such property was subject to seizure as an adjunct to the writ of attachment already granted.

On February 7, 1973, the trial court rendered judgment in favor of Reisfeld and against Lone Star and Everett M. Luke for the balance due on the open account of $57,846.93. The trial court also rendered judgment maintaining the writ of attachment and recognized Reisfeld’s “liens and privilege” on all property attached. This judgment is not against Alpha or Norma Lee Luke and did not rescind the Luke-Alpha transaction.

On October 21, 1973, Alpha executed a contract of sale to PFI for all its rights, interest and leases in the Luke mineral interest and executed a quitclaim deed in favor of PFI for the Luke mineral interest. On November 1,1973, Alpha assigned all of its rights, title and interest in the Luke mineral interest to PFI. All three of these agreements were recorded in the conveyance records of St. Mary Parish on November 14, 1973.

On December 3, 1973, the Sheriff of St. Mary Parish seized the Luke mineral interest pursuant to a writ of fieri facias issued under the judgment in the Reisfeld suit and scheduled a public auction to sell the property on January 23, 1974. On January 7, 1974, Reisfeld had an attorney-at-law appointed to represent Alpha and PFI in its suit (apparently for service of notice of seizure). On January 22,1974, Reisfeld and PFI entered into a compromise agreement concerning the Luke mineral interest. In this agreement, Reisfeld and PFI recognized the conveyance by the Lukes to Alpha and the conveyances by Alpha to PFI. In order to avoid potential litigation, Reisfeld and PFI agreed that Reisfeld would attempt to buy in the Luke mineral interest at the sheriff’s sale and, upon acquisition by Reisfeld at the sale, PFI would deliver to Reisfeld all of the rights, title and interest in the Luke mineral interest that it acquired from Alpha. Reisfeld agreed that when it recovered $60,780 from mineral lease bonuses, delay rentals or royalties, it would convey back to PFI all of its rights, title and interest in the Luke mineral interest. On January 22, 1974, PFI assigned all of its rights, title and interest in the Luke mineral interest to Reisfeld.

On January 23,1974, PFI and Norma Lee Luke entered into a compromise agreement. Norma Lee Luke agreed not to cause a delay in the judicial sale of the Luke mineral interest and agreed not to assert any claim against the mineral rights to be received by PFI pursuant to the Reisfeld-PFI compromise agreement. PFI asserted that it was the owner of two promissory notes secured by mortgages on property not pertinent to these proceedings and agreed to proceed to assert its right to foreclose on the mortgages and, after such foreclosure, to transfer to Norma Lee Luke the entirety of the rights, title and interest which PFI would acquire at the judicial sale of such property. PFI further agreed that if it was unable to deliver title to such property to Norma Lee Luke, that, in the alternative, it would assign to her 10% of the Luke mineral interest it would receive from Reisfeld under the Reisfeld-PFI compromise agreement.

The judicial sale of the Luke mineral interest was held on January 23, 1974, and it was purchased by Reisfeld for $20,000. On January 23, 1974, Norma Lee Luke granted a quitclaim deed to Reisfeld of all her rights, title and interest in the Luke mineral interest. On May 16, 1974, PFI assigned 25% of the Luke mineral interest to Seaman-Crouse, Ltd., a partnership composed of Joseph A. Seaman and Edwin F. Crouse. A copy of the Reisfeld-PFI compromise agreement was attached to this assignment and made a part thereof.

On February 27, 1978, Reisfeld recon-veyed the 25% Luke mineral interest to PFI in accordance with the Reisfeld-PFI compromise agreement.

On August 16, 1978, Norma Lee Luke Terrell filed suit to obtain specific performance of her compromise agreement with PFI by requiring PFI to convey to her a 10% ownership of the Luke mineral interest and for an accounting of mineral royalties. This suit resulted in a default judgment in her favor recognizing her 10% interest in the Luke mineral interest and ordering PFI to pay her $1,375 in royalties. No appeal was taken from this judgment and it is now final.

Apparently, prior to December 22, 1979, the Maryland No. 2-A well was plugged and abandoned. On December 22, 1979, Quintana completed the Luke No. 1 well on the property burdened by the Luke mineral interest. Production from this well began on January 13, 1980. On February 2, 1980, Quintana completed the Shinn No. 9 well in a unit which included a portion of the land subject to the Luke mineral interest. Production from this well began on February 18,1980. Quintana filed this concursus proceeding on June 18, 1980.

On July 2,1980, PFI assigned 20% of the Luke mineral interest to Joseph A. Seaman. Effective December 1, 1980, Seaman-Crouse, Ltd. assigned all of its rights, title and interest in the Luke mineral interest (25% of 25%) to John A. Seaman.

SUMMARY JUDGMENT

In Morgan v. Matlack, Inc., 342 So.2d 167, 169 (La.1977), appears the following:

The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Stallings v. W.H. Kennedy & Son, Inc., 332 So.2d 787 (La. 1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

If the supporting documents presented by a party moving for a summary judgment are sufficient to resolve all genuine issues of fact, the burden shifts to the opposing party to present evidence showing that material facts are still at issue. At this point, the opposing party may no longer rest on the allegations and denials contained in his pleadings. La.C.C.P. art. 967; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Broussard v. Henry, 423 So.2d 67 (La.App. 1st Cir.1982).

LEGAL EFFECT OF LUKE-ALPHA TRANSACTION

The Luke-Alpha contract recorded on December 28, 1972, is entitled “CONTRACT OF SALE OF MINERAL INTERESTS”. This contract commences by providing that “[T]he Sellers agree to sell and the Purchaser agrees to buy the mineral interest, rights and leases appertaining thereto, ... ”. In Paragraph I of the agreement, the parties stated that “[T]he mineral rights, interests and leases to be purchased under this contract ... ”. (Emphasis added). In Paragraph III of the contract, the Lukes agreed, upon request, to furnish Alpha with an abstract of title for the mineral interest and Alpha agreed to submit any objections to the title in writing within 90 days. The Lukes were thereafter given a reasonable time to meet objections. The last sentence of Paragraph III then provides as follows:

After Purchaser’s examination of all abstracts or chains of title appertaining to the aforementioned interest, all such instruments and abstracts shall be returned to the Seller and retained by the Seller until such time as this transaction has been fully consumated (sic). (Emphasis added).

The courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La.C.C. art. 1945; Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982); Campesi v. Margaret Plantation, 417 So.2d 1265 (La.App. 1st Cir.1982), writ denied 422 So.2d 163 (La. 1982). The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La.C.C. art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La. App. 1st Cir.1982), writ denied, 422 So.2d, 423 (La.1982). However, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, or fraud is alleged, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981); Carter’s Insurance Agency, Inc. v. Franklin, 428 So.2d 808 (La.App. 1st Cir. 1983).

When Reisfeld filed the supplemental petition to attach the Luke mineral interest, it referred to the Luke-Alpha contract as “a contract to sell”. Joseph E. Friend, Reis-feld’s attorney, testified in deposition (without objection) that he considered the Luke-Alpha transaction an agreement to sell and not a sale, and this is why he had the Luke mineral interest attached. When Reisfeld filed the supplemental petition to garnish Alpha, it sought to seize the proceeds of the contract which might be in Alpha’s possession. In the Reisfeld-PFI compromise agreement, the parties referred to the mineral interest “conveyed” by the Lukes to Alpha and the interest “conveyed” by Alpha to PFI. Paragraph E of the Reisfeld-PFI compromise agreement provides as follows:

PFI contends that as a result of the conveyances described in paragraphs C and D above, PFI acquired all the right, title and interest of Everett M. Luke and his wife in and to the property described in paragraphs B and C above prior to the date Reisfeld obtained the judgment against Everett M. Luke. Reisfeld contends that the consideration paid by Alpha' Investments Corporation to Everett M. Luke and Norma Lee Junca Luke was inadequate, and that in any event, the conveyances should be limited to the property which is expressly described in the conveyance from Everett M. Luke and Norma Lee Junca Luke to Alpha Investments Corporation.

In his deposition, Everett M. Luke testified that the Luke-Alpha contract was one of sale. John W. Carlisle testified in his deposition that he was an officer of Alpha and was the attorney who drafted the Luke-Alpha contract. He further testified that this agreement was intended to be a sale and not an agreement to sell. Alpha, by executing purported conveyances in favor of PFI, apparently construed the Luke-Alpha contract as a sale. La.C.C. art. 1956.

The trial court did not specifically rule on the legal effect of the Luke-Alpha contract. The trial court ruled that Alpha could not collaterally attack the Reisfeld-PFI compromise agreement, conveyance and reconveyance, and that Reisfeld’s title acquired at the sheriff’s sale became good against the world when the judgment sustaining the two year prescription of La.C.C. art. 3543 became final. The trial court found that “.., the attack that Alpha wishes to make at this time simply comes too late and in the wrong proceeding.”

We believe that a resolution of the legal effect of the Luke-Alpha contract is essential to a disposition of this case. The Luke-Alpha contract was recorded in the public records of St. Mary Parish on December 28, 1972, and became effective against third persons. At that time, the Luke mineral interest had not been attached, and Reisfeld did not have a judicial mortgage (judgment) against Everett M. Luke. If the Luke-Alpha contract is an agreement to sell (and not a sale), title to the mineral interest remained in Everett Luke (and also in Norma Lee Luke if the interest is community property). When Reisfeld attached the Luke mineral interest on January 23, 1973, it acquired a privilege effective that date when the open account claim was reduced to judgment and the privilege recognized on February 7,1973. La.C.C.P. art. 3511; Citizens Savings and Loan Association v. Pegues, 294 So.2d 278 (La.App. 1st Cir.1974), application denied 296 So.2d 837 (La.1974). The subsequent writ of fieri facias issued pursuant to the Reisfeld judgment and the judicial sale thereafter on January 23,1974, were valid. Since more than five years have elapsed since this judicial sale, any claims of nullity are now prescribed, if Everett Luke and Norma Lee Luke did not convey title to Alpha in the December 1972 contract. La.R.S. 9:5642; La.C.C. art. 3543. In such a situation, the judgment of the trial court would be correct.

However, if the Luke-Alpha contract is a sale, a different result occurs. When the Luke-Alpha contract was recorded in the public records on December 28, 1972, third persons were put on notice that title to the mineral interest conveyed therein passed to Alpha. Reisfeld had no judicial mortgage or privilege at this time. Reisfeld did not file a revocatory action against Alpha and the judgment that Reisfeld obtained on February 7, 1973, did not rescind the Luke-Alpha contract. The conveyances by Alpha to PFI were recorded in the public records of St. Mary Parish on November 14, 1973. The writ of fieri facias by which the Luke mineral interest was sold was issued in the Reisfeld suit on November 29, 1973, and the property was seized pursuant to the writ on December 3, 1973. At that time, record title to the Luke mineral interest was in PFI.

If the Luke-Alpha contract was a sale, then when the Luke mineral interest was attached, when the Reisfeld judgment was rendered, when the writ of fieri facias was issued and executed and when the sheriff’s sale occurred, the Luke mineral interest was not owned by the judgment debtor, Everett M. Luke. The proceedings from the attachment until the sale of this mineral interest were not binding on Alpha because Alpha was not made a party defendant to the suit and because the Luke-Alpha agreement had not been rescinded.

The sale of a thing belonging to another is null. La.C.C. art. 2452. This rule applies to judicial sales as well as conventional sales. Taylor v. General Gas Corporation, 87 So.2d 220 (La.App. 2nd Cir. 1956). The action of the trial court which sustained the plea of two year prescription of La.C.C. art. 3543 did not preclude an attack on the sheriff’s sale as being an absolute nullity. In Bordelon v. Bordelon, 180 So.2d 855, 857 (La.App. 3rd Cir.1965), appears the following:

LSA-C.C. Art. 3543 provides that judicial sales may not be attacked for “informalities of legal procedures” after five years from the time of the sale by minors or interdicts, or after only two years by persons not under legal disability. The trial court sustained the defendants’ exception of prescription based upon this code article.
The relatively short prescriptive period of this article is provided to create confidence in judicial sales by protecting good faith purchasers from litigation concerning technical irregularities connected with such sales; this prescription is intended to cure only relative nullities (in-formalities), however, not absolute nullities (matters of substance) which go to the essence of the sale and affect the substantive rights of the parties with interest in the property sold.... (Footnote omitted).

This distinction was also recognized in Peyrefitte v. Harvey, 312 So.2d 159 (La.App. 1st Cir.1975), writ refused 314 So.2d 736 (La.1975). The sale of the property of another is an absolute nullity. However, the five year prescription of La.R.S. 9:5642 is not applicable to a sheriff’s sale of the property of another because the second paragraph of that statute provides as follows:

This prescription does not apply to any attempted sale of property, not belonging to the defendant in execution, nor does it apply to minors and interdicts.[] (Emphasis added).

Alpha may attack the sheriffs sale as an absolute nullity, even though it is now precluded from attacking the sale as a relative nullity.

Determining the nature of the Luke-Alpha contract is a mixed question of law and fact. The documentary evidence of record shows that there is conflicting evidence on whether the contract is a sale or an agreement to sell. Parol evidence was introduced by way of the pleadings and by deposition on this factual issue. Because there are material factual conflicts existing on this issue, the granting of a summary judgment is precluded.

DIFFERENCES IN DESCRIPTION OF LUKE MINERAL INTEREST

The description of the Luke mineral interest attached by Reisfeld is essentially the same'as that contained in the Luke-Alpha contract. Essentially, this interest appears to be all of the rights, title and interest of Everett M. Luke included in the MA-13-SAND UNIT A located in various sections and townships in St. Mary Parish. However, the description of the Luke mineral interest attached to the writ of fieri facias is different from that in the attachment. The description attached to the writ of fieri facias essentially describes all of the rights, title and interest of Everett M. Luke in and to the oil, gas and other minerals or mineral rights in a tract of land in St. Mary Parish described as the “highland of Garrett Plantation”. The record in this case is not clear as to whether or not the two descriptions are mutually inclusive or if they are different, the degree and/or extent of the difference. If the Luke-Alpha contract was a sale, and if the minerals transferred therein were less than the total amount owned by Everett M. Luke, then Reisfeld could have validly seized the residue pursuant to its writ of fieri facias. This is an issue of fact which is not resolved by the documentary evidence of record and thus precludes a summary judgment.

FRAUD IN THE ALPHA-PFI TRANSFERS

If the Luke-Alpha transaction was a sale, and the sheriffs sale of no legal effect, the titles of Joseph A. Seaman, Norma Lee Luke Terrell and PFI are contingent upon the validity of the Alpha-PFI transactions.

In answer to the Quintana concursus petition, Alpha admitted executing the three conveyances in favor of PFI (the sale, quitclaim and assignment), but alleged these instruments were only to be used for obtaining investors in a joint venture operation between Alpha and PFI. Alpha further alleged that PFI agreed not to use the three instruments until the investors were obtained and until Alpha was paid $200,000 in cash and 60,000 shares of capital stock in PFI. Alpha also alleged that PFI’s agent was allowed to have possession of these documents solely for the purpose of consulting with potential investors. Contrary to their agreement, PFI recorded the instruments in St. Mary Parish and did not and has not paid the cash consideration agreed upon. Thus, Alpha contends in its answer that the Alpha-PFI conveyances were fraudulently obtained and recorded, and thus did not transmit valid title.

In his deposition, Everett M. Luke testified that Pat Farr, PFI’s president, represented three doctors who wanted to invest in the Luke mineral interest. Alpha agreed to sell PFI two promissory notes and the Luke mineral interest for $300,000, plus 60,-000 shares of PFI stock valued at $1.00 per share. The doctors did not want to put up any money until PFI had title to the minerals. The documents were drawn up for Farr to show the investors. PFI then proceeded to record the instruments and did not pay the cash consideration of $300,000 agreed upon. Luke also testified that all three documents (the sale, assignment and quitclaim deed) were altered after they were signed. The description of the property in the quitclaim deed was changed. The sale made no reference to the $300,000 cash consideration and did not refer to a deduction in price for a judgment.

John W. Carlisle testified in his deposition that the Alpha-PFI transaction was to be for $200,000, 60,000 shares of PFI stock and payment of a bank note and a judgment in favor of James Anderson. Title was not intended to pass from Alpha to PFI until PFI raised the funds. Pat Farr, PFI’s president, took Carlisle’s file with the instruments on the pretense of conferring with investors. Farr apparently removed the instruments from the file and had them recorded in St. Mary Parish. The instruments were not to be recorded until the cash consideration was paid. The cash consideration was never paid. Carlisle also testified that the quitclaim deed appeared to be altered.

A claim of fraud raises an issue of fact. Sinclair Oil & Gas Company v. Delacroix Corporation, 235 So.2d 187 (La.App. 4th Cir.1970). Although the movers for the summary judgment introduced evidence by way of deposition to refute the claims of Everett M. Luke and John W. Carlisle, clearly material issues of fact exist concerning the validity of the Alpha-PFI conveyances. Such issues of fact preclude the granting of a summary judgment.

CONCLUSION

For the foregoing reasons, the summary judgment granted by the trial court is reversed and this cause is remanded to the trial court for further proceedings. The appellees are cast for all costs of this appeal.

REVERSED AND REMANDED.

APPENDIX 1

CONTRACT OF SALE OF MINERAL INTERESTS

This contract made and entered into on this _ day of December, 1972 by and between EVERETT MARTIN LUKE, et ux, NORMA LEE JUNCA LUKE, residents of Pharr, Hidalgo, Texas, hereinafter referred to as the Sellers, and ALPHA INVESTMENTS CORP., a corporation organized under and pursuant to the laws of the State of Texas, Post Office Box 788, Pharr, Texas, 78577, hereinafter referred to as the Purchaser.

WITNESSETH:

The Sellers agree to sell and the Purchaser agrees to buy the mineral interest, rights and leases appertaining thereto, hereinafter described upon the following terms and conditions:

I.

The mineral rights, interests and leases to be purchased under this contract is located in St. Mary Parish, Louisiana and consists of approximately 620 acres of land, more or less, described as follows:

619.709 acres, being portions of Section 25, Township 15 South, Range 9 East, and Sections 28, 29, 30, 51, 55, 71, 60, 72, 75, 76, 77 and 79, Township 15 South, Range 10 East, St. Mary Parish, Louisiana, which unit was created by Order No. 450-N of the Department of Conservation of the State of Louisiana dated January 5, 1967, effective January 1, 1967, which is recorded in Conveyance Book 14-P of the records of St. Mary Parish, Louisiana, under Entry No. 132,809, said order being incorporated herein by reference for all purposes and a plat of said unit being attached hereto as Exhibit “A” for all purposes.

It is understood that the acreage set out above is approximate and that the purchase price herein is paid for the mineral interest, mineral rights, and interests is said leases and not upon the specific acreage nor does the purchase price include land which has been heretofore conveyed, only applies to the mineral rights, mineral interest and leasehold interest therein.

II.

Now, for Fifty Thousand and No/100 ($50,000.00) Dollars and other good and valuable consideration heretofore the subject of separate transactions entered into by and between the Sellers and John W. Carlisle, an Officer and Director of the Purchaser, the Sellers agree to convey all mineral rights, interest and leases aforedescribed to the Purchaser in exchange for all the rights, interest and properties of Crown Trucking Co., heretofore conveyed to the said John W. Carlisle, who has in turn conveyed the said rights, interest and properties of Crown Trucking Co. to the purchasing corporation, Alpha Investments Corp. for the sum of Twenty Five Thousand and No/100 ($25,000.00) Dollars for the capital stock of the purchasing corporation, Alpha Investments Corp. Everett Martin Luke, et ux, Norma Lee Junca Luke, are to receive as a part of the consideration for the conveyance of the aforedescribed mineral rights, interest and leases the properties rights and interests of Crown Trucking Co. from Alpha Investments Corp., when that certain promissory note sold to John W. Carlisle by Everett Martin Luke et ux (Entry 144,791 recorded in conveyance book 16 J and Entry 108,887 recorded in Mortgage Book 293) by reference incorporated herein has been paid in full according to its legal face and tenor.

III.

Sellers agree to convey the aforede-scribed interests to Purchaser under the terms and conditions of this instrument, subject to the current assignment of royalties and monitary payments for the production from the said interest to the Commercial Bank and Trust Co., a banking institution organized and existing under the laws of the State of Louisiana, and having its principal place of business in Franklin, St. Mary Parish, Louisiana and further subject to easements, if any, for gas and oil pipe lines, electric power lines, telephone and telegraph lines, roads and highways, and subject to taxes and assessments or installments thereof to be paid by the Seller to and through December 31, 1972. Thereafter, the Purchaser is to assume all payments and assessments or installments and taxes on said interest heretofore described.

Sellers agree to furnish upon Purchaser’s request an abstract covering title to the aforedescribed interest and Purchaser agrees to submit in writing objections, if any, to said title within ninety (90) days from the receipt of the abstract and title if requested. Sellers shall have a reasonable time thereafter to meet any and all objections, if any, of the objections pertaining to non-disclosure of facts relating to identity of parties, heirship, marriage, and which facts are not ordinarily found in recorded instruments, such objections may be made by affidavit of two or more credible persons who have knowledge of such facts. If any link in the chain of title depends upon the validity of any other deed of trust or conveyances an affidavit or affidavits of credible persons disclosing such facts that such conditions did exist according to the provisions in any legal instrument shall be conclusive as to such facts as between the Purchaser and the Seller. In the event the Seller is unable to obtain requested curative instruments for any defect more than ten years old, Seller may meet such objections by furnishing in lieu thereof affidavit or affidavits from two or more credible persons disclosing adverse possession, if any, and accordingly Seller and Purchaser will be bound by the affidavit of two or more credible persons making the aforementioned disclosures.

After Purchaser’s examination of all abstracts or chains of title appertaining to the aforementioned interest, all such instruments and abstracts shall be returned to the Seller and retained by the Seller until such time as this transaction has been fully con-sumated.

IV.

Purchaser certifies that it is satisfied as to the value of the aforementioned interest prior to and as a condition precedent to its acceptance and execution of this contract satisfied with the physical condition predicated upon representation by Seller of said premises and agrees that its acceptance hereafter shall be conclusive evidence of the receipt of said premises in the condition satisfactory to Purchaser. Purchaser agrees and submits that no representation as to condition or repair of said premises have been made by Seller or his agents and likewise agrees and admits that no agreement or promises to alter or repair or improve said premise have been made by the Seller or his agents unless such agreement is hereinafter included in this contract as a special provision.

V.

As a part of the consideration for this sale, the Purchaser agrees to pay all expenses in connection with recording of this instrument and any subsequent instruments necessary to consummate this transaction under the laws of the State of Texas and the laws of the State of Louisiana including stamp taxes and all expenses in connection with title to show that the entire sales transaction has been completed and of record.

VI.

It is mutually agreed that any fixtures, portable objects and personal property items now located on the above described premises are no part of the transaction to be consummated by this instrument nor are they bargained for and included in this sales transaction and are hereby specifically excluded therefrom.

VII.

This contract includes the following special provisions which shall control any conflicts in other sections hereof.

VIII.

This agreement constitutes the entire agreement between the Seller and Purchaser, and the Seller is not bound by any agreement, condition, stipulation, understanding or representation made by any of Seller’s agents and not contained herein.

IX.

The words “Seller” and “Purchaser and all personal pronouns and relative words used herein with reference to the selling or purchasing party or parties shall apply regardless of number or gender.

X.

It is further understood by the parties hereto that the assignment of monies and royalties to the Commercial Bank and Trust Company of Franklin, Louisiana, herebefore mentioned shall continue until the note with said bank has been fully paid and the obligation has been completely discharged and that the parties hereto are notifying the Commercial Bank and Trust Company and Quintana Petroleum Corporation by registered mail as to this transaction.

XI.

In testimony whereof the Sellers and the Purchaser have subscribed their respective names on the day and year first above written.

/s/ Everett Martin Luke Everett Martin Luke — Seller

/s/ Norma Lee Junca Luke Norma Lee Junca Luke — Seller

Alpha Investments Corp. — Purchaser

/s/ John W. Carlisle John W. Carlisle, Executive V. Pres.

THE STATE OF TEXAS

COUNTY OF HARRIS

I, Clyde Austin, a notary public do hereby certify that on this 14th day of December, 1972 A.D., personally appeared before me, John W. Carlisle who being by me first duly sworn, declared that he is the person who signed the foregoing document and.that the statements therein contained are true and correct.

My commission expires

June 1, 1973.

/s/ Clyde Austin Clyde Austin, Notary Public in and for Harris County, Texas.

THE STATE OF LOUISIANA

PARISH OF EAST BATON ROUGE

I, James Farrier, a notary public do hereby certify that on this_day of December 1972 A.D., personally appeared before me, Everett Martin Luke and Norma Lee Junca Luke, who each being by me first duly sworn, severally declared that they are the persons who signed the foregoing document and that the statements therein contained are true and correct.

/s/ James Farrier Notary Public in and for East Baton Rouge Parish, Louisiana JAMES FARROER

WITNESSES:

/s/ Frances M. Brown FRANCES M. BROWN

/s/ Jemmv Sue Farrier JEMMY SUE FARRIER

APPENDIX 2

All of the right, title and interest of Everett M. Luke in and to the minerals, royalties and other interests included in MA 13- SAND UNIT A, containing 619.-709 acres, being portions of Section 25, Township, 15 South, Range 9 East, and Sections 28, 29, 30, 51, 55, 71, 60, 72, 75, 76, 77 and 79, Township 15 South, Range 10 East, St. Mary Parish, Louisiana, which unit was created by Order No. 450-N of the Department of Conservation of the State of Louisiana dated January 5, 1967, effective January 1, 1967, which is recorded in Conveyance Book 14-P of the records of St. Mary Parish, Louisiana, under Entry No. 132,809, said order being incorporated herin by reference for all purposes and a plat of said unit being attached to Contract of Sale.

APPENDIX 3

All of the right, title and interest of Everett M. Luke in and to the oil, gas and other minerals or mineral rights in, to and under the following described property, to-wit:

That certain tract or parcel of land in the Parish of St. Mary, State of Louisiana, situated in Sections 29, 30, 51, 59, 60, 70, 71, 72, 75, 76, 77 and 78, T 15 S, R 10 E, St. Mary Parish, Louisiana, in the vicinity of Bayou Sale, being the highland of Garrett Plantation; beginning at an iron rail on the property line of The Maryland Co., Inc., Point “A”, thence South 81 deg. East a distance of 4920.4' to an iron rail on the East side of State Route 60, Point “Q”; thence North 12 deg. 14 min. East, a distance of 179.2' along the East side of State Route 60, to an iron rail, Point “K”; thence South 81 deg. East, a distance of 1413' to an iron rail, Point “L”; thence south 24 deg. 25 min. East a distance of 404' to an iron rail, Point “M”; thence south 8 deg. 51 min. West, a distance of 846.5' to an iron rail, Point “N” on the West right-of-way line of the abandoned Southern Pacific Railroad; thence South 40 deg. 46 min. West, along said West right-of-way line a distance of 576.8' to Point “N”, the P.C. of a 4 deg. curve; thence further along said right-of-way and in a Southerly direction around said curve, a distance of 1072.2' to Point “N” the P.T. of said 4 deg. curve; thence South 1 deg. 3 min. East further along said right-of-way, a distance of 842.6' to an iron rail, Point “0”; thence North 80 deg. 36 min. West along the North property line of Johnson Plantation, a distance of 5576' to an iron pipe, Point “D”; thence North 9 deg. 36 min. East, a distance of 1282.3' to an iron rail, Point “E”; thence North 78 deg. 56 min. West a distance of 864.7' to an iron rail, Point “F”; thence North 15 deg. 17 min. East a distance of 715.4' to Point “G”; thence North 74 deg. 43 min. West a distance of 105' to an iron pipe, Point “H”; thence North 15 deg. 17 min. East, a distance of 102.2' to an iron pipe; Point “I”; thence South 74 deg. 43 min. East a distance of 105' to Point “J”; thence North 15 deg. 17 min. east a distance of 1194.8' to an iron rail, Point “A”; the point of beginning. Bounded on the North by property of The Maryland Co., Inc., on the East by property of Laws, Huth & Aycock, on the South by Johnson Plantation, property of Alice C. Plantation and Refinery, Inc., and on the West by land of Laws, Huth & Aycock. All as is more fully shown on map made by T.F. Kramer, C.E., dated January 12, 1950, annexed to act of sale recorded in Book 7-M of the Conveyance Records, Entry No. 80,285, St. Mary Parish, Louisiana, together with all buildings and improvements thereon situated, rights, ways and appurtenances thereto belonging or in anywise appertaining.

Being the same property on which oil, gas and/or minerals or mineral rights were reserved by said Everett M. Luke, Jr. in that certain act of sale to The Garrett Plantation, Inc. dated September 28, 1967, recorded October 4, 1967, in St. Mary Parish Conveyance Book 14-Z, page 96, Entry No. 134,664.

      . This contract is attached to this opinion as “Appendix 1”. The record does not show whether the Luke mineral interest is community or separate property.

      . The depositions filed in the record indicated that Reisfeld also purchased a judgment against Everett Luke that existed prior to the Luke-Alpha transaction.

      . No copy of this transaction is in the record, but the parties do not contest this fact.

      . Apparently, Mrs. Luke remarried.

      .The record indicates that Reisfeld, at some point in time, purchased a preexisting judgment against Everett Luke; however, Reisfeld did not seize and sell the Luke mineral interest pursuant to that judgment.

      . Reisfeld apparently assumed that the Luke-Alpha contract was an agreement to sell.

      . Alpha was made a party garnishee and was given notice of seizure through a court-appointed attorney.

      .We do not opine as to what is the applicable prescriptive period, if any, for the absolute nullity of sale of the property of another since such prescription is not presently at issue in these proceedings.

      . See “Appendix 2”.

      . See “Appendix 3”.


author: CARTER, Judge.

text:
    Marie Shelmire ELSEY v. The SHERIFF OF the PARISH OF EAST BATON ROUGE, et al.
    No. 82 CA 0938.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.
    Writ Denied Nov. 4,1983.

      James C. Ferguson, Baton Rouge, for plaintiff-appellant Marie Shelmire Elsey.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Mary Olive Pierson, Baton Rouge, for defendant-appellee Sheriff J. A1 Amiss.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is a wrongful death action. Plaintiff, Marie Shelmire Elsey, appeals the judgment of the trial court in favor of the defendant, Sheriff of the Parish of East Baton Rouge.

On May 15, 1980, plaintiff’s thirty-two year old son, Edward Elsey, Jr. (Flap), was an inmate in the East Baton Rouge Parish Prison at Ryan Airport. Elsey had been incarcerated in the parish facility on numerous occasions and was known to suffer from chronic asthma. Early on the morning of May 16,1980, Flap was pronounced dead at the Earl K. Long Memorial Hospital. An autopsy revealed that the cause of death was status asthmaticus.

Much of the testimony at trial concerned whether Flap requested and was denied his prescribed medication (Tedral and Prima-tine Mist) by prison deputies. Three inmates testified that on May 15, 1980, the deceased requested medication numerous times, but, despite his requests, was unsuccessful in obtaining any medication. They further testified that Flap was in physical distress and was having difficulty breathing for some 15 hours before medical assistance was given.

To the contrary, the shift supervisor and two officers supervising the wing in which Flap was located denied that such requests for medication had been made. Corporal Vessell, who worked the midnight to 8:00 a.m. shift on the morning of May 16, 1980, testified as follows:

“Q Prior to May 16, 1980, did Mr. Elsey ever ask you for any primatine?
A Negative.
Q He didn’t make any complaints to you whatsoever about shortness of breath or difficulty in breathing?
A No. The only thing he said to me was right around the time the storm came up and that was that he wanted something to make his bowels move. He wanted me to see could I get him something to make his bowels move, namely, mineral oil.
Q When you started the shift on May 16th and you walked the line, did you notice Edward Elsey?
A Yeah, I spoke to him several times when I passed by, like I normally do everytime I work.
Q And he appeared fine to you?
A He seemed to be okay to me. He didn’t complain about anything.
Q He was moving around in his cell as he was talking?
A He was talking to the other inmates and smoking cigarettes.
Q This was around midnight?
A Around midnight.
Q He at no time asked you directly for his primatine?
A At no time did he ask me for any medicine other than early the next morning for mineral oil.
Q He did not appear to have shortness of breath or difficulty breathing when you came on your shift on May 15th?
A I didn’t notice any unusual activities that was going on with Edward Elsey at that time.”

The prison medicine lists showed that Flap had received Tedral twice on May 15, 1980, the latest dosage being given at 2:00 p.m. on May 15. All the officers testified that Flap requested mineral oil for constipation at approximately 4:40 a.m. on May 16,1980, and that upon returning to the cell with the laxative, they discovered that Flap had collapsed. According to the officers, it was at that time they became aware that Flap was having difficulty breathing.

Upon removing Flap from the prison cell and deciding on treatment, officers transported Flap to the Earl K. Long Memorial Hospital for care. The emergency room staff at the hospital facility, despite resusci-tative therapy, was unable to save Flap’s life and pronounced him dead approximately twenty-five minutes after his arrival.

The knowledge of Flap’s death initiated an investigation by Detective Randy Keller who testified that he interviewed some 14 inmates at the parish prison. His investigation, according to his testimony, revealed that although Flap had requested medication for asthma on the preceeding day, he had received medicine at approximately 2:00 p.m. on May 15,1980, and had made no further requests or complaints.

In determining that Flap died of severe asthmatic damage or injuries to his lungs, pathologist, Dr. James A. Freeman, testified that certain factors, viz., the stormy weather, the high pollen content in the air, the advanced stage of Flap’s asthma, and the fact that Flap smoked, contributed to the severity of Flap’s condition. Dr. Freeman also testified that intravenous medication or prescription drugs through aerosol were the only things which could have helped Flap. Dr. Freeman further testified that it is possible to have the best of therapy and still die of an asthmatic attack.

Plaintiff alleges that the defendant has breached the duty owed to the decedent, as an inmate, to provide adequate medical treatment.

The standard of care imposed upon the Department of Corrections in providing for the medical needs of inmates is that those services be reasonable. Brown v. State, 392 So.2d 113 (La.App. 1st Cir.1980); Moreau v. State, Department of Corrections, 333 So.2d 281 (La.App. 1st Cir.1976); Dancer v. Department of Corrections, 282 So.2d 730 (La.App. 1st Cir.1973).

The statutory authority imposing the duty is found in LSA-R.S. 15:760 which provides:

“Where large numbers of prisoners are confined, the proper authorities in charge shall provide hospital quarters with necessary arrangement, conveniences, and attendance, etc.”

The general statutory scheme of LSA-R.S. 15:761 (repealed; see now R.S. 15:751) was that the duty imposed under LSA-R.S. 15:760 shall apply to all jails, prisons, and lockups located in Louisiana.

This duty to provide reasonable medical care for prisoners does not require the maintenance of a full hospital at the site of each prison in order to protect an inmate against every medical risk, but does encompass the risk that an inmate will become sick or be injured and require life-saving medical attention. Moreau v. State, Department of Corrections, supra.

The resolution of this issue in the instant case is basically a question of the credibility of witnesses who testified. The trial judge, in oral reasons, found that the testimony of the defendant’s witnesses (the - Sheriff’s deputies) was more credible than the testimony of the plaintiff’s -witnesses (the prison inmates).

Based upon the aforementioned findings of fact, the trial court found plaintiff had failed to establish a breach of duty by the Sheriff.

Factual findings by the trial court are entitled to great weight and will not be disturbed on appeal absent a finding of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We cannot say in this case that the trial court erred as a matter of law in deciding that the defendant did not breach the duty owed to the decedent.

Therefore, the judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . Plaintiffs petition also named as defendants the City of Baton Rouge and Parish of East Baton Rouge. The trial court, however, granted a directed verdict in favor of the City-Parish ■government and dismissed plaintiffs complaint against the City of Baton Rouge and the Parish of East Baton Rouge.

      . The other officers who testified gave substantially similar accounts of Flap’s conduct pre-ceeding his death.

      . The three inmates who testified at trial stated that Flap requested and was denied medication; however, the reports made by them to Detective Keller immediately after Flap’s death reveal that no such requests or denials were reported.


text:
    John M. ELLIS, Jr., et al. v. Gwendolyn Ann DEARING.
    No. 82 CA 0949.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellee John M. Ellis, Jr., et al.
    Allen M. Posey, Jr., Baton Rouge, for defendant-appellant Gwendolyn Ann Dear-ing.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this case is whether or not defendant is violating the subdivision building restrictions by operating a one-chair beauty shop from her home.

In July of 1982 defendant, Gwendolyn Dearing, purchased a home located on North Parkview Drive, Broadmoor Subdivision (fifth filing), in Baton Rouge. In August of 1982 defendant moved into the residence and began operating a one-chair beauty shop from the enclosed carport of her home. Shortly thereafter, plaintiffs, John M. Ellis and Robert L. Kleinpeter, both residents of the subdivision, filed suit for a temporary and a permanent injunction, praying for an order forbidding defendant from operating a beauty shop in her home. The petition alleged defendant’s operation of a business violated the subdivision building restrictions. A hearing was held on the preliminary injunction only.

' After hearing testimony by various parties and witnesses, the court held Mrs. Dearing’s operation was a violation of the building restrictions and granted the preliminary injunction. Defendant then filed this sus-pensive appeal.

Appellant argues the court erred in granting the preliminary injunction for two reasons. One, the subdivision building restrictions do not specifically prohibit the operation of a one-chair beauty shop and two, because a “home occupation” is a “residential purpose” within the meaning of the building restrictions and should therefore be permitted.

The building restrictions, filed in Book 1025, folio 324 of the conveyance records of East Baton Rouge parish, contain only two provisions pertinent here. The restrictions read as follows:

“1. All of the lots contained in this subdivision are hereby designated as residential lots, and no building shall be erected, altered, placed or permitted to remain on any lots other than one (1) detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than three (3) cars.” (Emphasis added.)
“6. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood.”

Appellees contend provision number 1, which mandates all lots to be designated as “residential lots” is violated by the existence of the beauty shop, a commercial establishment. They contend further the activity is “noxious or offensive” in that there are as many as twenty cars a day pulling in and out of Mrs. Dearman’s driveway, creating a traffic hazard. Further, the activity is offensive in that it violates the “strictly residential” character of the neighborhood.

There is no dispute that Mrs. Dearing, a licensed beautician, operates a full time beauty shop in her home. She admitted she supports herself and her children solely by the profits from her business. She stated that on her busiest days she might serve 13 or 14 customers. A neighbor, Bessie Lee Pope, testified she had kept a record of the number of cars entering and leaving Mrs. Dearing’s premises. Some days as many as 20 to 30 cars were counted.

The only question then is whether or not the operation of this beauty shop is in violation of the subdivision restrictions.

The first restriction states specifically that all lots are designated as “residential lots” and each lot is to contain only a “detached single family dwelling.” This shows the specific intent of the drafters that the subdivision should consist of residences only and should not contain any commercial enterprises.

Similar building restrictions have been discussed by other courts. In Wax v. Woods, 209 So.2d 329 (La.App. 4th Cir.1968) writ refused, 211 So.2d 330 (La.1968), the defendant wanted to operate a podiatry office within his home. The building restrictions stated the lot would not be used for other than residential purposes. However, another provision of the building restrictions provided:

“No sign of any kind shall be displayed to the public view on any lot, except one professional sign of not more than one square foot....” (Emphasis added.)

Because of that provision the court felt the subdividers did not intend to prevent a “home occupation” from being pursued.

In Woolley v. Cinquigranna, 188 So.2d 701 (La.App. 4th Cir.1966), the building restrictions stated the lots were to be used for residential purposes only. The defendant was a field manager for a national brush company. The court concluded that his activities, which involved interviewing new salesmen, dispensing samples to them, receiving goods and storing them in his home, violated the “residential use” restriction.

In the more recent case of Mulberry Ass’n, Inc. v. Richards, 369 So.2d 185 (La. App. 4th Cir.1979), writ denied, 371 So.2d 1345 (La.1979), the defendant practiced law from an office located in his home. Again, the subdivision restrictions stated that use of the property was to be limited to “residential purposes.” The court concluded the existence of the law office violated the residential purpose restriction. The court distinguished Wax v. Woods, supra, because the restrictions in Wax specifically allowed a “professional sign” to be placed on the lot. The restrictions in the Mulberry case specifically prohibited the use of the lots for advertising signs.

In addition to these cases we have found two cases which are particularly pertinent in that the disputed activity was a home operated beauty parlor. In Oak Ridge Builders, Inc. v. Bryant, 252 So.2d 169 (La. App. 3d Cir.1971), writ refused, 253 So.2d 384 (La.1971), the defendant had worked as a beautician in her home on a part-time basis from 1967 to 1970. During that period she merely operated out of her living room in a rather informal manner. In 1970 she opened a complete beauty shop and operated it as a full time business. At that time she became licensed, apparently moved her operation from her living room to an area specifically designed for a beauty parlor, bought full equipment and advertised in the phone book.

The pertinent restrictions, like the ones in other cases, stated that only single family dwellings were to be erected on the residential lots. Further, like the restriction in the case at hand, there was one forbiding any “noxious, offensive, unsanitary ... activity or business ... [which] might be considered a nuisance to the neighborhood.” The court found that once she began her full time operation she was in fact violating the building restrictions.

The facts of Oak Ridge Builders are similar to the facts in the present case. Although we have no evidence here of Mrs. Dearing advertising in the phone book, we do have the similar situation of a full-fledged beauty shop, located in a specific room of her home, with customers coming at regular hours, and the business being a full time occupation for the proprietor. We therefore reach the same result reached by the Bryant court. Mrs. Dearing’s activities constitute a business enterprise and such an enterprise violates the building restrictions which state that all lots are designated as residential.

The facts of Marquess v. Bamburg, 188 So.2d 721 (La.App. 2d Cir.1966) are also very similar to the ones in the case at hand. There, the subdivision was burdened with a restriction which read, “no lot shall be used except for residential purposes.” Defendant operated a one person beauty parlor from a room in her house. She worked four days a week and there were no visible signs (from the outside of the house) that the house contained a beauty shop. The main issue in the case was whether -or not the building restrictions had been abandoned, and the court discussed this issue throughout. The court ultimately concluded the restrictions had not been abandoned and without elaboration concluded the operation of the beauty shop did violate the building restrictions.

Appellant’s second argument is that a “home occupation” is a residential purpose so that the operation of the beauty shop is not in violation of the building restriction. Appellant cites Wax v. Woods, supra, as authority for this proposition. In that case, the city zoning ordinances specifically provided for persons to pursue “home occupations” within their residences. There was nothing in the building restrictions which prohibited “home occupations” so the court concluded a home occupation was allowed and did not violate the residential purposes limitation of the building restriction.

.As we have mentioned before, we, like the Mulberry Ass’n court, can distinguish the Wax case because of its particular provision allowing certain professional signs. As it relates to this issue of “home occupation” we note that in the Wax case the city ordinances were before the court. In the present case neither party has introduced copies of any ordinances nor were they discussed at the hearing. Therefore we simply find the rationale of the Wax case inapplicable to the present case.

For these reasons, the judgment of the trial court, granting the preliminary injunction, is affirmed. Appellant is to pay costs.

AFFIRMED.

      . The parties stipulated at trial that Mrs. Dear-ing was in compliance with the zoning ordinances.

      . In the case at hand we have no specific restriction against signs, as in Mulberry, nor do we have a provision allowing them, as in Wax.

      . “Home occupation” was defined as “A professional occupation customarily conducted in dwellings and apartments, including that of a physician, surgeon, dentist, lawyer, clergyman, etc_”