author: BOUTALL, Judge. BOWES, Judge,

text:
    LaDEL, INC. v. Greg FOX, d/b/a Greg Fox Productions.
    No. 83-CA-425.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Rehearing Denied March 16, 1984.
    Writ Denied May 4, 1984.

      Edward A. Armstrong, Jr., Jefferson, for LaDel, Inc., plaintiff-appellee.
    William Noland, New Orleans, for Greg Fox, d/b/a Greg Fox Productions, defendant-appellant.
    Before BOUTALL, CHEHARDY and BOWES, JJ.
   BOUTALL, Judge.

This is an appeal by defendant Greg Fox from a money judgment against him on a past due account.

Plaintiff LaDel, Inc. filed suit against “Greg Fox, d/b/a Greg Fox Productions”, for $7,931.09, which LaDel alleged was due for goods and services on an open account. Fox does not dispute the account per se but contends that it was not his obligation but the obligation of another entity, Greg Fox Productions, Inc., and not for the use and benefit of Greg Fox personally. The trial judge rendered judgment against Fox personally for the full account, and we affirm.

The account consisted of sales of services and materials from LaDel to Fox beginning in 1979 forward. The invoices were stipulated to and there is no issue concerning the amount. They are addressed to “Greg Fox Productions.” Greg Fox insists that the business was actually done with “Greg Fox Productions, Inc.,” a corporation organized by him on January 19, 1979, which transacted the business at issue in this suit.

Plaintiff produced its secretary-treasurer, Jacqueline Lala, who testified that Greg Fox had done business with plaintiff beginning in 1977 as an individual, and that Fox sought to resume business relationship with them in 1979. Ms. Lala testified that when she inquired of Fox as to a credit application to do business, she asked if everything was the same as when they had done business before and was assured by Fox that it was and that he was acting in his own individual business. The credit application was marked as one for an individual. There was no disclosure to plaintiff that Greg Fox was now acting as agent for a corporation. Although Greg Fox denies a number of the allegations made by the witness against him, it is apparent that the trial judge ruled against him on the question of credibility, and after considering his testimony, we are led to a similar assessment of credibility.

In addition to the testimony, the documentary evidence supports a conclusion that plaintiff is correct. As noted above, the invoices were not in the corporate name, but simply that of Greg Fox Productions. Of course, the plaintiff prepared the invoices and so the weight given those may be somewhat lessened. More importantly, we note that the bank accounts and the checks of Fox during this period were not in the corporate name and that the letters received from Fox show no corporate name, nor is Fox’s signature ever supported by an identification such as president, etc.

We do not consider this as a case of piecing the corporate veil in order to impose liability upon one of the officers. The plain facts are that this plaintiff did business with Greg Fox without its ever being aware that a corporation entitled Greg Fox Productions, Inc. was ever in operation. The trial judge found Greg Fox to be doing business individually and cast him in judgment in that capacity. We believe the evidence enumerated above amply supports that conclusion, and we affirm at appellant’s costs.

AFFIRMED.

BOWES, J., dissents.

BOWES, Judge,

dissenting.

I disagree with the majority in that I believe that LaDel in its original petition actually did require that the Court pierce the corporate veil of Greg Fox Productions and find Fox individually liable. Under the facts and circumstances of this ease, I do not feel that the plaintiff carried its burden of proof. The “exceptional circumstances”, required by the jurisprudence, are simply riot present in this case. (See Liberto v. Villard, 386 So.2d 930 (La.App. 3rd Cir.1980) quoting Kingsman Enterprises v. Bakerfield, 339 So.2d 1280 (La.App. 1st Cir.1976).

The majority bases its opinion on the credit application, invoices made out to Greg Fox Productions, and the checks of defendants which do not show the corporate name. The majority opinion notes that the invoices in question were prepared by the plaintiff and so less weight is given them. However, the credit application was also drawn up by the plaintiff.

Mrs. Lala initiated and prepared the application, filling it out from information taken over the telephone. Fox never saw the application, nor signed it, nor in any way attested to its accuracy. This court should not hold him responsible for the inaccuracies contained therein, which are self-serving statements beneficial to LaDel, Inc., whose employee prepared the same.

Mrs. Lala testified that she would have checked “individual” on the form only in response to a question; that she was “told” he was operating as an individual, that she always asks; but when pressed by defense counsel, she admitted that she could not be sure, that she “might” have asked. Fox, on the other hand, was quite certain that she had not asked whether the business was a corporation. The record reveals uncertainty on the part of Mrs. Lala, rather than a conflict in testimony.

The factor which may have been most misleading is the omission of the abbreviation “Inc.” on the defendant’s stationery and checks. The corporate certificates, articles of incorporation, initial report, etc., show the name of the business as “Greg Fox Productions, Incorporated.” Certain W-2 forms were introduced at trial to show that several employees were paid by Fox Productions, Inc. A letter to plaintiff’s president dated June 8, 1979, informing him of services available, consistently refers to the business in the plural (we’re in the animation business now”; “our new equipment”, etc.). A letter to plaintiff’s counsel dated August 12, 1980, from defendant, continues this plural characterization and further refers to “our company.” Fox testified that the omission of the letters “Inc.” on his checks was done by the bank in printing the checks, and that he had mistakenly failed to include the abbreviation on his stationery. Admittedly, this testimony is self-serving, but not to the extent of the self-serving testimony introduced by plaintiff, whose burden it is to prove the case.

The Louisiana Revised Statutes provide that the corporate name shall include the word “Corporation”, or “Incorporated”. The statute does not provide penalties for failure to do so. The failure to use such words does not, per se, create a presumption of fraud sufficient to permit piercing the corporate veil.

I do not condone failure to follow the law, and, under other circumstances, one who fails to declare his corporate status by use of the word “Corporation” or “Incorporated” or “Inc.” in his corporate business might well be held personally liable.

However, the “totality of circumstances” referred to in our jurisprudence requires us to take the failure to include words such as “Inc.” into consideration, along with the other behavior of defendant, to determine whether the corporation became his alter-ego; whether the individualities of the corporation and the defendant ceased to exist; or whether the corporation no longer existed as an individual distinguishable from the shareholder. No evidence of such inter-changability between Fox and Greg Fox Productions, Inc. was adduced at trial. There was no showing that there was any co-mingling of personal and corporate funds, or that the defendant used the corporation to further his personal affairs. In short, plaintiffs presumption that Greg Fox Productions operated as an individual is not supported by a preponderance of the evidence.

I also disagree with the majority opinion insofar as it is not apparent to me that the' trial court ruled against the defendant in the question of credibility. Indeed, from the remarks of the judge at the end of the trial, it appears to me that he felt rather that plaintiff should have been on notice that Greg Fox Productions was, in fact, a corporation, and I am perplexed at his ultimate decision, without written reasons, in favor of plaintiff.

Further, the judgment appears to me to be a compromise on the part of the judge to assure payment to plaintiff. Such a result is hinted at in the trial judge’s closing remarks. While I am mindful that the corporate entity is disregarded in order to prevent defrauding of creditors, I feel that the facts do not warrant the holding of Greg Fox liable, individually, by the trial judge or the result reached by the majority.

Finally, the case footnoted in the majority opinion should not be confused in the present situation. Fox, in that case, failed to present evidence, in a motion for summary judgment, that Greg Fox and Greg Fox Productions were not the same entity. Therefore, that opinion was not so much dispositive of the present question as it was a judgment by default. The facts and circumstances in the two cases are completely different, I feel that reference to that case is inappropriate.

For the foregoing reasons, I respectfully dissent.

      . As an interesting side light to this case, we note the case of Primary Color Laboratory, Inc. v. Greg Fox Production, 427 So.2d 590 (La.App. 5th Cir.1983).


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    Rev. Jules THOMAS, Jr. v. ADVANCE MORTGAGE CORPORATION and Lincoln National Life.
    No. 83-CA-564.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.

      David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for plaintiff/appellant.
    Robert S. Rooth, Joan G. Quinters, New Orleans, for defendants/appellees.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

Plaintiff-appellant, Reverend Jules Thomas, Jr., appeals from a Summary Judgment granted by the district court on November 2, 1982, dismissing plaintiffs suit against defendants for nonpayment of benefits on a mortgage disability insurance policy taken out by appellant with appellees. We affirm.

On September 16, 1979, plaintiff, Rev. Jules A. Thomas, while in the course and scope of his employment for the Godchaux-Henderson Sugar Company, slipped and fell, sustaining an injury to his right shoulder. Following the accident, plaintiff was transported to St. James Hospital for treatment. Rev. Thomas was subsequently treated, first, by Drs. Albrecht and Levy and, finally, by Dr. Ralph J. Gessner. On November 20, 1979, Dr. Gessner first diagnosed Rev. Thomas’ injury as a rotated cuff tear of the right shoulder.

On October 4,1979, plaintiff made a written application for mortgage disability income insurance on a group policy issued by defendant Lincoln National Life Insurance Company to defendant Advance Mortgage Corporation. On the application for group disability income insurance, Rev. Thomas stated he was actively employed; that he was not disabled, receiving medical treatment or medication of any kind; that he had not consulted or been treated by any medical practitioner or been in a hospital, clinic or diagnostic facility during the past three years; and that he had not missed fifteen (15) or more consecutive work days in the previous twelve (12) months. There is no doubt that most, if not all, of these statements were inaccurate.

The learned trial judge, in his reasons for judgment, stated:

This Court does not find that Plaintiff intentionally made statements which he knew to be false on his insurance application with the defendant.

Because the trial judge’s finding above was in the plaintiff’s favor, we find it unnecessary to address any questions concerning plaintiff’s misrepresentations in his application for the policy in question.

Under the express provisions of the group mortgage disability income- insurance certificate issued by Lincoln National Life Insurance Company and effective December 1, 1979, disability beginning within 24 months of the effective date of the insurance and caused by or relating to an accident which caused the insured to consult a doctor for advice or treatment during the twelve (12) months prior to the effective date of the insurance was excluded from coverage.

Rev. Thomas’ answers to interrogatories and the deposition of Dr. Gessner positively establish that Rev. Thomas was disabled by an accident which occurred on September 16, 1979, well within the 12 month period prior to the effective date of the insurance and was treated by a physician for this accidental injury on that same date, prior to the effective date of the insurance.

A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories and other documents in the record show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981).

This court recognizes that summary judgment is not a substitute for a trial on the merits and that the mover, to prevail in his motion, must carry a heavy burden of proof. Ballard v. Jayakrishnan, 427 So.2d 665 (La.App. 5th Cir.1983). However, we find, as did the trial judge, that the pleadings, depositions, and answers to interrogatories in this ease clearly show that there is no genuine issue as to material fact and that appellees, Advance Mortgage Corporation and Lincoln National Life Insurance Company, were entitled to summary judgment as a matter of law.

Accordingly for the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are to be borne equally by both parties.

AFFIRMED AND AMENDED.


text:
    LOUISIANA SHOES, INC. v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 83-CA-576.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Joel Levy, Levy & Levy, Marrero, for plaintiff/appellant.

      Raymond J. Salassi, Jr., Jones Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant/appellee.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

The present case is before us on appeal from the granting of summary judgment in favor of defendant. We affirm the decision of the trial court.

Plaintiff, Louisiana Shoes, Inc., contracted with South Central Bell Telephone Company for an advertisement listing in the directory “Yellow Pages” for 1979 and thereafter. The advertisement was' omitted from the directory during the period of April 1981 through the date of filing of suit. Plaintiff sued South Central Bell for breach of contract, alleging loss of business as a result of its absence from the yellow pages.

Bell filed a motion for summary judgment, averring in its supporting memorandum that the “standard” limitation of liability clause renders Bell liable only for an abatement of the charges for the listing, that such charges were not rendered to the plaintiff, and that plaintiff had no further cause of action against Bell. The trial judge reluctantly granted the summary judgment, stating he felt compelled to do so because of the “monolithic jurisprudential approval upholding the limitation of liability clause.” Plaintiff appealed, alleging 1) the limitation clause is adhesion-ary and against public policy; 2) the limitation of liability provision is a separate obligation lacking cause and is therefore a nullity; and 3) the limitation of liability provisions only applies where there is an absence of negligence.

We, too, feel compelled to follow the established jurisprudence of Louisiana (and practically every other jurisdiction in this country) that such limitation of liability clauses as in the present case are valid and not against public policy. Appellant has attempted, unsuccessfully, in our opinion, to distinguish this situation from the cases of Wilson v. Southern Bell Telephone & Telegraph Co., 194 So.2d 739 (La.App. 1st Cir.1967), Marino v. South Central Bell Tel. Co., 376 So.2d 1311 (La.App. 1st Cir.1979), Roll Up Shutters, Inc. v. South Central Bell Tel., 394 So.2d 796 (La.App. 4th Cir.1981), and Willhite v. South Central Bell Telephone Company, 693 F.2d 340 (5th Cir.1982). Neither can we distinguish them.

The plaintiff also contends that the limitation clause is adhesionary, and thus unenforceable. He cites no pertinent authority for such contention, however, and we find no Louisiana cases which advance the theory of adhesion to invalidate a contract. We are presented with no compelling reason to defy the vast majority of cases upholding these clauses.

We did discover one case, Butcher v. South Central Bell Tel. Co., 398 So.2d 197 (La.App. 3rd Cir.1981) which allowed damages in a case similar to this. However, the limitation of liability clause was not advanced as a defense; therefore, we are unable to regard the case as viable precedent.

With regard to appellant’s next specification of error, we find his argument somewhat muddled in this area and, again, we are offered absolutely no authority to support the issue. Appellant’s conclusion that the limitation clause is null because it is without cause is so tenuous that, without foundation in applicable law or jurisprudence, we are obliged to dismiss it without further comment.

For our purposes, it is sufficient to state that such limitation of liability clauses are valid in the context of the theories argued by appellant. Agreements entered into have the effect of laws on those who have formed them. La.C.C. 1901. Parties may by their contract determine the sum to be paid as damages for breach. La.C.C. 1934(5). Here plaintiff and defendant stipulated that damages would not exceed the amount of the advertising charge. Such clause is binding on both parties, and while it may seem unfair, it is certainly unambiguous. Our courts traditionally decline to relieve parties to contracts of their bad bargains. Maloney v. Oak Builders, Inc. 235 So.2d 386 (La.1970).

Finally, plaintiff asserts that such limitation of liability clauses do not defeat a claim founded in negligence. Bunch v. South Central Bell Telephone Company, 356 So.2d 104 (La.App. 1st Cir.1978), supports this argument. However, plaintiff’s petition does not disclose an allegation or action in negligence. Had he premised his case as one of negligence, this court might be inclined to remand the matter for a full trial on the merits. Under the circumstances presented, however, we have no option but to affirm the trial court, albeit with the same reluctance expressed by the trial court in its original judgment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The liability of the Telephone Company, or of any person or firm soliciting advertising for it, on account of errors in or omissions of the advertising described on the reverse side, or advertising, changes or deletions subsequently ordered by the applicant by telephone or otherwise, shall in no event exceed the amount of charges for the advertising, which was omitted or in which the error occurred in the then current directory issue, and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred.


author: DUFRESNE, Judge.

text:
    Vincent PIZZITOLO, Jr. v. The KENNER MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, et al.
    No. 83-CA-582.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Rehearing Denied March 16, 1984.
    Writ Denied May 4, 1984.
    McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-appellant.
    Cyril H. Reisgen, Jr., New Orleans, for defendant-appellee.
    Before GAUDIN, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This appeal comes to us from a decision of the Kenner Municipal Fire and Police Civil Service Board, Kenner, Louisiana (Board) whereby the Board affirmed the dismissal of Vincent Pizzitolo, Jr. from his duties on the Kenner Police Department.

The facts of this case are undisputed.

Mr. Pizzitolo was hired by the City of Kenner, Kenner Police Department, as a police officer on May 19, 1976. His personnel record shows that he was hired on a probationary status.

Upon satisfactory completion of the probationary period, he was hired on a permanent status on May 19, 1977.

On August 22, 1979, because of personal problems, he tendered his resignation which was accepted, effective as of August 28, 1979.

On April 9, 1980, he was re-employed and on June 3, 1980, his salary was adjusted to the full salary level which he had attained when he resigned.

On October 30, 1980, he was dismissed for violation of Article 53, Section 3, of the Rules of Administration of the Department of Police, relative to “neglect of duty” (unauthorized sleeping on duty) occurring on October 11, 1980.

Pizzitolo denied these charges and appealed the action of the City of Kenner to the Kenner Municipal Fire and Police Civil Service Board. A hearing was held on the merits of this violation on February 10, 1981.

The Board, after hearing the arguments of the parties, made the following decision:

“It is the decision of this Board that officer Vincent Pizzitolo was in a probational status, of more than six months and not more than one year within the working test period. As such this hearing is considered null and void. Any appeal in this dismissal shall be heard on the grounds of whether or not officer Pizzitolo was given a fair opportunity to prove his ability in the position.
The Appeal period is still open at this time and this Board will entertain an appeal within the duration stated under the original personnel action.”

From this decision Pizzitolo appealed to the 24th Judicial Court for review. The district court affirmed the Board’s decision and dismissed Pizzitolo’s action.

Pizzitola has appealed this ruling and urges the following issue:

“Was plaintiff-appellant, Vincent Pizzito-lo, Jr., rehired by the provisions of Louisiana Revised Statute, Title 33, Section 2495 and does that provision apply to Police Officers who have already received their training and been rehired after a short period of absence?”

Pizzitolo argues his appeal by quoting LSA-R.S. 33:2495, which reads:

“Every person appointed to a position in the classified service following the certification of his name from a promotional or a competitive employment list, except those appointed on a temporary basis, shall be tested by a working test while occupying the position before he may be confirmed as a regular and permanent employee in the position.”

Pizzitolo had been hired on May 19, 1976, as a police officer and his personnel record shows that he completed his probationary period and was hired on a permanent status on May 19, 1977. He had been a working police officer for the City of Kenner for one year and satisfied the statutory requirements of the “working test” period.

We must focus our attention to August 22, 1979, the date Pizzitolo tendered his resignation as a police officer for the City of Kenner. In accord with Louisiana Civil Service Statute, a person loses all rights of seniority when such a person tenders a resignation from classified service.

Eight months subsequent to his resignation, Pizzitolo was re-hired as a Kenner police officer.

Pizzitolo argues that LSA-R.S. 33:2495’s “working test” period is applicable for only newly hired employees who have no experience in the position for which they are hired or its provision is to be applied to promoted employees who are being transferred into positions of different responsibility from a position formerly held. We disagree. After carefully examining the appropriate statute, we hold that the “working test” period, within the strict reading of this statute, does indeed apply to all classified employees, including those who have been re-hired as well as all new or transferred employees. Just as an employee forfeits all accumulated seniority when he resigns, he also forfeits any rights he may have had as a previous classified employee. If the redactors wished to make some type of exception or exclusion for persons such as Pizzitolo they would have so provided. To hold that an employee need not be tested by a “working test” would place this court in a position of drafting legislation. Strong arguments can be presented on behalf of “re-hired” employees that it is not necessary for them to be re-tested. Consideration must be given to the time that has elapsed between the rehired employee’s previous service and the date of his rehiring. Understandably after a period of one month or two months, or even one year, the employee might not need retraining; however, where would the line be drawn.

Statutes on Civil Service should be strictly interpreted and here absent specific authority or legislation providing that re-hired employees are not subject to the “working test period”, every person in accordance with R.S. 33:2495 shall be tested by a working test before such employee may be confirmed as a regular and permanent employee in the position.

We further find that Pizzitolo was not re-hired as a permanent police officer on April 9, 1980. The record indicates that Pizzitolo was re-hired by the City of Ken-ner on April 9, 1980, and was dismissed from police service on October 30, 1980 as a result of a Neglect of Duty Charge (i.e., unauthorized sleeping on duty).

The applicable statute provides the following guidance:

“Any employee who is rejected after serving a working test of six months but not more than one year, may appeal to the board only upon the ground that he was not given a fair opportunity to prove his ability in the position.” LSA-R.S. 33:2495.

Pizzitolo appealed to the Board on the charge that he was unauthorized to be sleeping on duty. The Board heard the case, then ruled that its hearing was null and void with respect to this issue.

The Board ruled that Pizzitolo was a classified employee in a probationary status, and as such, did not have the requisite legal standing to lodge this type of an appeal. The Board was willing to grant Pizzitolo an appeal on the grounds of whether he had been given a fair opportunity to prove his ability in the position; however, he chose not to exercise this right of appeal. We find no error as to application of the law to the uncontroverted facts of this appeal. Consequently, for the foregoing reasons, the judgment of the trial court sustaining the decision of the Kenner Municipal Fire and Police Civil Service Board is affirmed.

AFFIRMED.


text:
    Jacques LAUER and Raymond Locatto v. CITY OF KENNER.
    No. 83-CA-526.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.

      McGlinchey, Stafford, Mintz & Cellini, B. Franklin Martin, III, New Orleans, for plaintiff-appellant.
    George W. Giacobbe, Kenner, for defendant-appellee.
    Molony, Nolan, North & Riess, Bruce A. North, Metairie, Radar Jackson, New Orleans, De Martini, Leblanc & D’Aquila, Alvin A. LeBlanc, Jr., Kenner, for interve-nors.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Jaques Lauer, petitioner-appellant, devol-utively appeals from a judgment dissolving a temporary restraining order and denying a preliminary injunction sought by him to prevent Patricia Wood, wife of/and Charles Lambert, Folmar & Associates, Ltd. and the City of Kenner, respondents-appellees, from building a supermarket complex on the grounds that such construction was being undertaken under an allegedly invalid ordinance amending the zoning and/or land use laws of the City of Kenner. Lauer also suspensively appeals on award to Folmar of $7,584 as damages for delay caused by wrongful issuance of the temporary restraining order as well as $7,500 in attorney fees awarded to Folmar, Wood, Lambert and the City of Kenner.

Because the construction sought to be enjoined has now been completed, we hold that the issue of whether the injunction was properly denied is now moot. However, as we further find that appellees made no demand for any special damages, we hereby vacate the award for damages and attorney fees. The issue of the validity of the ordinance is not before this court.

The pertinent facts are these. On June 3, 1982, the Kenner City Council passed an ordinance, the effect of which was to adjust certain land use and/or zoning restrictions to permit construction of a supermarket on a certain parcel of ground. Jaques Lauer and Raymond Locatta thereupon filed suit for declaratory judgment against the City of Kenner, alleging therein that the Council had violated its own rules of publication and parliamentary procedure in enacting the ordinance, and therefore that the ordinance was void. Folmar, Wood and Lambert intervened, and this action is still pending before the trial court.

In the meantime, Folmar was granted building permits by the city, and by October 13th, had commenced construction. On this date, Lauer alone, amended his original petition to seek injunctive relief against Folmar, Wood and Lambert. A temporary restraining order was issued, Lauer posted a $25,000 bond, and a hearing for the preliminary injunction was held on October 20th and 21st. Folmar answered the amended petition by urging a denial of the injunction, and also requested an increase in the bond to two million dollars in the event the preliminary injunction was issued. They did not move to have the temporary restraining order dissolved, nor did they reconvene for damages for wrongful issuance of the temporary restraining order.

The results of this hearing were that the trial court refused to grant the injunction, the temporary restraining order was dissolved, and Lauer was cast in judgment to Folmar for the delay caused by the wrongful issuance of the restraining order. He was also ordered to pay $7,500 in attorney fees to Folmar, Wood, Lambert and the City of Kenner. Lauer now appeals.

Because all litigants in briefs and arguments have extensively addressed questions which are not pertinent to our decision here, we will first dispense with those issues.

The first of these is whether or not the ordinance in question is valid. The simple fact is that there has never been a determination of this issue by the trial court, and there is no final judgment before us which is reviewable, La.C.C.P. Art. 2083. The second is whether or not the trial court erred in denying the preliminary injunction. That issue is now moot. What was sought to be enjoined has now occurred, and we cannot enjoin a past event, Verdun v. Scallon Bros. Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972).

We appreciate Lauer’s argument that:

1.) A determination of the validity of the ordinance might be dispositive of,
2.) Whether the injunction should have been issued and,
3.) Whether the temporary restraining order was wrongfully issued, thus giving rise to damages and attorney fees.

However, our disposition of the case does not require us to take up the first two of these arguments, even were the first before us and the second not moot. Nor do we need to address the third argument as to whether the temporary restraining order was wrongfully issued, as the following discussion will show.

This brings us finally to the issue that is properly before us, i.e. whether Lauer was properly cast in judgment for damages and attorney fees.

Article 861 of the Code of Civil Procedure provides that items of special damages must be specifically alleged in pleadings. Special damages are those which can be fixed to a pecuniary certitude, Anderson v. Welding Testing Lab. Inc., 304 So.2d 351 (La.1974). While Article 862 allows recovery of damages even though not sought, so long as the evidence supports such recovery, this article is not applicable to special damages, Bank of St. Charles v. Ransome, 343 So.2d 1206 (La. App. 4th Cir.1977).

It is also the law that under La.C. C.P., Art. 1154, pleadings may be amended at trial to include special damages not previously alleged by presentation of otherwise inadmissible evidence establishing such damages, and when such evidence is not objected to by the opposing party, Webster v. Rushing, 316 So.2d 111 (La.1975).

Applying these principles to the case before us, we conclude that appellees are not entitled to either damages or attorney fees.

The damages awarded are clearly “special” in that they represent interest and certain daily on-site costs incurred by Folmar during pendency of the restraining order, and these costs were fixed to a pecuniary certitude. Attorney fees are similarly “special damages”, Lanier Business Products, Inc. v. First National Bank of Rayville, 388 So.2d 442 (La.App. 2nd Cir., 1980).

Appellees do not contend, and the record does not show, that they specifically alleged any damages or attorney fees in their pleadings. Indeed, they neither motioned the court to dissolve the temporary restraining order, nor did they reconvene for damages for wrongful issuance of the temporary restraining order, either or both of which actions were available, and both of which would have permitted an award for damages and attorney fees on successful prosecution, C.C.P., Art. 3608.

Therefore, unless the pleadings were amended without objection at trial to include demand for these items, they cannot be recovered.

Our reading of the hearing transcript discloses no such amendment. While it is true that evidence was admitted without objection as to Folmar’s daily interest and expenses, we do not consider this evidence to have amended the pleadings because such evidence was admissible on the issue, raised by Folmar in pleadings, namely that of increasing the bond should the preliminary injunction issue. This evidence was pertinent; it therefore could not have been excluded by objection to its introduction, and we hold that its introduction did not work an amendment to the pleadings under C.C.P., Art. 1154. We therefore vacate the award of damages.

As to attorney fees, they were neither pleaded, nor so much as mentioned at the hearing, and we therefore vacate that award for the same reasons.

We finally emphasize that we do not, and need not decide whether the temporary restraining order was wrongfully issued, or whether damages would have been properly awarded had demand been made. What we do decide is simply that when special damages are potentially owing, they must be properly alleged on original or amended pleadings or be tried by tacit consent. Otherwise, the court is without authority to award them.

For the foregoing reasons, the award of damages to Folmar & Associates, Inc. and the award of attorney fees to Folmar, Wood, Lambert, and the City of Kenner are hereby vacated. The question of whether the preliminary injunction was properly denied is declared moot. The question of the validity of the ordinance is still pending in the trial court. It is not properly before this court, and no order therefore need issue from this court in that regard.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.


author: KLIEBERT, Judge.

text:
    ORMOND CIVIC ASSOCIATION v. The PARISH OF ST. CHARLES, the Parish Council For the Parish of St. Charles, the St. Charles Parish Planning and Zoning Commission, Harold Holmes, Pauline Tassin, Wife of/and John F. Cerise, and G. John Cerise.
    No. 83 CA 603.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.

      J. Rene Williams, Montgomery, Barnett, Brown & Read, New Orleans, for plaintiff-appellant.
    Don Almerico and Jerome A. Kunkel, Destrehan, Leonard K. Fisher, Jr., Boutte, for defendants-appellees.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by the Ormond Civic Association, plaintiff (hereafter Association), from the dismissal of its suit against the Parish of St. Charles, the St. Charles Parish Planning and Zoning Commission, Harold Holmes, the Director of St. Charles Parish Planning and Zoning Commission (collectively sometimes referred to as Government defendants) and Pauline Tassin, wife of/and John F. Cerise and G. John Cerise (collectively referred to as developer landowners) on an exception of res judicata. For the reasons which follow, we dismiss the appeal for mootness.

The petition was entitled “Petition for Declaratory Judgment” and prayed for a judgment which would (1) declare the construction of 120 apartment units and related buildings on Parcel 8-A of the Ormond Country Estates Subdivision in Destrehan, Louisiana, as unlawful because in violation of the St. Charles Zoning Ordinance enacted in 1981 and unauthorized because being constructed without first obtaining a preliminary certificate of zoning compliance; (2) order the Planning Director for the Parish of St. Charles to issue a stop work order to the developer landowners, pursuant to the provisions of the 1981 St. Charles Parish Zoning Ordinance or, alternatively, for an order directing the developer landowners to apply for a preliminary certificate of zoning compliance and to alter their construction plans and specifications so as to comply with the 1981 ordinance.

In its petition, the plaintiff alleges the developer landowners submitted to governmental authorities plans and specifications showing an intention to construct 420 apartment units on a 15 acre tract in Or-mond Estate. After the issuance of a permit, but prior to the commencement of construction of any apartment units, the Parish adopted a new zoning ordinance. Although the construction of the 420 units on the tract would not have violated the 1966 zoning ordinance which was in effect at the time the permit was issued, when construction commenced the construction of 420 units on the tract would violate the 1981 zoning ordinance. The petition alleges the construction of the 120 apartment units was unlawful because the permit issued for their construction was improperly issued. According to the allegations of the petition, under the provisions of the 1966 ordinance, the permit for the construction of the 420 apartment units had expired and the ordinance made no provision for the re-issuance of a permit for 120 units.

In response to the petition, the developer landowners filed an exception entitled “Exception of No Right of Action and Res Judicata. The exception of no right of action was grounded in the contention the plaintiff possessed no special interest which might be impinged upon by the alleged actions or inactions of the defendants. The exception of res judicata was grounded in the previous dismissal of a suit entitled “Ormond Civic Association et al. v. Kevin Friloux, President of the St. Charles Parish Police Jury”, filed under Docket No. 25379 of the 29th. Judicial District Court. Following a hearing on June 6, 1983, the trial judge dismissed the exception of no right of action but maintained the exception of res judicata and therefore dismissed plaintiff’s suit with prejudice.

No evidence was taken during the hearing on the exceptions but, during the course of arguments of counsel, the trial judge ordered “incorporated” in this suit “all of the proceedings” in the suit previously filed and disposed of under Docket No. 25379 of the trial court. The only portions of these proceedings contained in the record before us, however, are transcripts of arguments made and testimony taken under Docket No. 25379 on February 8, 1983 and April 4, 1983. Neither the pleadings, judgment or exhibits filed in that action are in the record. A comparison of the plaintiffs allegations here, to the testimony given in the suit under Docket No. 25379, reveals discrepancies between the testimony of the witnesses and what the litigants now argue were the issues in the first suit. Thus, as presented, the record is insufficient for us to pass on the trial court’s decision on the exception.

Under those circumstances, in the interest of justice, remanding the case to supplement the record would be procedurally proper. LeBlanc v. Guidry, 444 So.2d 738 (5th Cir.1984). However, for the reasons hereafter stated, we dismiss the appeal for mootness.

During oral argument, the litigants agreed the 120 units for which plaintiff was seeking to have the court order the Parish to issue a stop work order have been completed and at the present time there are no other units being constructed. Further, the litigants agree the units presently on the site are not in violation of the 1966 or the 1981 zoning ordinances.

Although counsel for plaintiff argues the present action is an action for declaratory judgment declaring the issuance of the permit for the 420 apartment units unlawful, his petition was not so framed. A mere reading of the petition shows its object was to have the court declare the construction of the 120 apartment units unlawful because being constructed without a proper permit and, once so declared, have the court order the Parish authorities to issue a stop work order. Thus, although labeled a suit for a declaratory judgment, in fact, it was a suit to stop the ongoing construction of the 120 apartment units. Since the plaintiff did not seek injunctive relief nor a suspensive appeal and the 120 units have been constructed and are not in violation of either zoning ordinances, the question involved in the suit, i.e., whether or not a stop work order should be issued is moot. Freret Civic Association v. Orleans Parish School Board, 223 La. 407, 65 So.2d 893 (La.1953); Graham v. Congregation of St. Rita Roman Catholic Church, 146 So.2d 666 (4th Cir.1962), writs denied 1/14/63.

Accordingly, the appeal is dismissed. Each party is to bear his own cost of the appeal.

DISMISSED.

      . Other exceptions as to plaintiff's capacity were filed and disposed of but are not material to the appeal.

      . None of these ordinances are in the record before us.


author: CHEHARDY, Judge.

text:
    Marshall HINCHMAN, et al. v. George J. OUBRE, et al.
    No. 83-CA-555.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.

      Rogers & Connelly, Jack N. Rogers, Baton Rouge, for Marshall Hinchman, plaintiff-appellant.
    Steven F. Griffith, Sr., Ltd., Steven F. Griffith, Destrehan, for Julius B. Sellers, defendant-appellee.
    Boggs, Loehn & Rodrigue, Charles A. Boggs, Cynthia P. Conroy, New Orleans, for George T. Oubre, defendant-appellee.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   CHEHARDY, Judge.

This is an appeal by plaintiff Marshall Hinchman from a judgment dismissing his suit on exceptions of no right and/or cause of action.

On October 24, 1975 Marshall Hinchman, individually, and Hinchman Electrical Contract Maintenance Corporation (HECMAC), a corporation wholly-owned by Marshall Hinchman, filed suit against George T. Ou-bre, Joe Vitrano and Ann Ackel Generos. Plaintiffs alleged abuse of process and conspiracy to defraud through use of the procedure for seizure and sale of a judgment debtor’s movable property (that is, execution of a judgment by writs of fieri facias and sequestration).

On April 19, 1976 plaintiffs filed a supplemental and amending petition, adding as defendants Julius B. Sellers Jr., personally and in his official capacity as Sheriff of St. Charles Parish, two unknown deputy sheriffs sued under fictitious names, and the unknown insurance company surety for the parish officials, also sued under a fictitious name. Plaintiffs alleged further acts of abuse of legal process and conspiracy to defraud.

After long delays due to difficulty in making service on some of the defendants, apparently all defendants were served. Defendants Oubre, Generos and Sellers filed exceptions of no right and/or cause of action. The trial court denied the exceptions as to HECMAC, but granted them as to Hinchman. The basis for thé ruling was the defendants’ contention that Hinchman had no personal right of action or cause of action because any damages inflicted were suffered by the corporation, HECMAC, and not by Hinchman individually. From this judgment Hinchman has appealed.

(We note that a prior exception of no right and/or no cause of action filed by Oubre had been denied by the trial court. The basis for that exception, however, was that Hinchman and HECMAC had no right of action against Oubre because Oubre was Generos’ attorney. Oubre had contended therein that as Generos’ attorney, he owed no duty to plaintiffs which would have been violated if their allegations of misuse of process were correct. As stated above, that exception was denied and is not before us here. The present exception is based on different grounds.)

In the original petition,, plaintiffs alleged that HECMAC was wholly-owned by petitioner Hinchman and leased its corporate business premises from defendant Generos; that Generos obtained a $10,650 judgment against HECMAC based on nonpayment of rent; and that, pursuant to the judgment, Generos was placed in possession of the premises and the Sheriff was ordered to seize all movable property located thereon. The plaintiffs stated,

“Using the aforesaid judgment as ostensible authority, defendants entered into an agreement and conspiracy to cheat and defraud petitioners out of all their movable property located in the aforesaid premises, to wrongfully deprive petitioners of the use of said movable property and to take said movables away from petitioners for a small fraction of their actual value.”

The plaintiffs further averred that George T. Oubre undertook to carry out the aforesaid acts against petitioners “[ajcting pursuant to the aforesaid agreement with defendant Generos and as her attorney and her agent.” The wrongful acts alleged are that defendant Oubre obtained an appraisal of the property which was far below its actual value; that defendants attempted to sell the seized property based on the allegedly low appraisal; that this attempt was “a patent and obvious attempt to defraud and cheat petitioners out of the true value of their property using the legal process of the Court as a means to carry out their dishonest ends.”

Plaintiffs asserted that pursuant to the alleged conspiracy and agreement,

“[Defendant George T. Oubre, still acting as attorney and agent for defendant Generos, and with her full knowledge and consent, directed and procured defendant Deputy Joe Vitrano * * * to go to the home of petitioner Marshall Hinch-man and take the serial numbers and license numbers off all the trucks, motor vehicles and boats parked there, for the purpose of including them in the Court-Ordered sheriff’s sale of movables supposedly located in the aforementioned premises [i.e., the leased premises] * * *, which was again a patent and obvious attempt to defraud and cheat petitioners out of their property using the legal process of the Court.”

Hinchman and HECMAC further alleged that they subsequently obtained a court order dissolving the seizure and releasing the property to them. However, they stated, when they attempted to retrieve the property a considerable amount of it had disappeared. They alleged employees of the Sheriff failed to maintain the seized property in a safe and secure condition, because the Sheriffs deputies allowed a business competitor to examine business records and thus learn valuable business secrets; that the Sheriff and his deputies allowed part of the seized property to be removed from the leased premises, that some of the property thus removed disappeared and was never returned, and other property returned had been damaged and rendered useless.

Regarding the damages suffered by Hinchman personally, the petitioners alleged in the original petition:

“As a direct and proximate result of the aforesaid wrongful acts of defendants, petitioner Marshall Hinchman has suffered substantial embarrassment, loss of income, loss of use of movable property, loss of business contacts, loss of security and privacy of business records to competitors and gross harassment and inconvenience and damages [in the total amount of $50,000.00].”

In the supplemental and amending petition, Hinchman averred,

“In addition to the above, petitioner Marshall Hinchman, the sole owner of HECMAC suffered as a direct and proximate result of the above described wrongful and/or negligent acts of defendants considerable pain, suffering, mental anguish, inconvenience and embarrassment, and was damaged thereby in the amount of Ten Thousand and No/100 ($10,000.00) Dollars, for which sum defendants Generos, Sellers, Doe, Smith and XYZ Insurance Company are liable in solido unto petitioner Marshall Hunchman [sic].”

We note, apart from the other issues, that the district court’s judgment is incorrect in one respect, as to its form. The judgment states broadly, “[T]he suit brought on behalf of Marshall Hinchman, et al., and against George Oubre, J.B. Sellers, and Ann Ackel Generos is dismissed with prejudice.” This language appears to dismiss not only Hinchman’s claim but also HECMAC’s claim. The reasons for judgment, however, make clear that the court intended to dismiss only Hinchman’s claim. The corporation is entitled to continue the litigation. The miswording of the judgment was an oversight and the judgment should be amended to correct it.

The real question before us is whether Hinchman established he has a personal right of action, and if so whether his petition states a cause of action against the defendants.

The district court adopted as its reasons for judgment the memorandum in support of the exceptions filed by the defendants. (Actually, only defendant Oubre filed a memorandum, which was then adopted by defendants Generos and Sellers.) The major thrust of that memorandum was that Hinchman’s claims for damages were actually claims for damages suffered by his corporation, HECMAC, and therefore he has no right of action personally.

This contention is partly correct. The debts and obligations due to a corporation are not due to the individuals who compose its membership. LSA-C.C. arts. 435, 436, 437; Texas Industries, Inc. v. Dupuy & Dupuy Develop., Inc., 227 So.2d 265 (La.App. 2 Cir.1969). If a corporation has sustained a loss then only that corporation can sue to recover it. Afeman v. Insurance Company of North America, 307 So.2d 399 (La.App. 4 Cir.1975). A person who conducts business in corporate form and reaps the benefits of incorporation cannot sue individually for damages incurred by the corporation. Mahfouz v. Ogden, 380 So.2d 646 (La.App. 1 Cir.1979).

Marshall Hinchman’s claims for damages for loss of income, loss of business contacts, and loss of security and privacy of business records are damages directly suffered by the corporation. Any such losses he has suffered are indirect, as a stockholder. Accordingly, he may not recover for these damages himself.

However, regarding his claims for loss of movable property and loss of use of movable property, and resulting mental anguish and inconvenience, certainly he has a right to recover those losses as to any personal property he had on the premises, if he is able to prove any of the seized property belonged to him individually rather than to the corporation.

Defendants have cited certain deposition testimony in support of their contention that Hinchman had no personal property on the premises and therefore has no individual right to recover for the seized property. That testimony simply establishes that Hinchman and the other witnesses were unable to prove, at the depositions, who owned the various movables involved because they did not have their records available. Hinchman still has the right to prove his individual ownership at trial.

Regarding the exception of no cause of action, defendants argue that the relevant portions of the petitions are mere conclu-sionary allegations, without specific facts to support them. We agree. Referring to the relevant allegations, quoted in the beginning of this opinion, we see that plaintiff Hinchman alleges conspiracy among the defendants, but alleges no material facts to support this. He alleges loss of property but does not list any items that belonged to him personally. Similarly, he fails to substantiate his allegations of loss of use of property. (The only property listed as missing is alleged to belong to HECMAC.)

As stated in Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980),

“ * * * Although the correctness of the plaintiffs well pleaded allegations of fact is assumed, the correctness of its conclusions of law is not conceded for purposes of a ruling on an exception of no cause of action. * * *
“C.C.P. 891 provides that a petition ‘shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based ... ’ From that language it is clear that a court when considering an exception of no cause of action must consider only the facts alleged by the plaintiff, and that a mere statement of a conclusion of law will not state a cause of action. * * * ” 383 So.2d at 336.

We conclude that Hinchman’s claims as to damages to which he is entitled personally amount to no more than an assertion of conclusions.

Under LSA-C.C.P. art. 934, however, when the grounds of the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. Because Hinchman may be able to amend his petition to allege material facts upon which to base a personal cause of action, we will remand to afford him that opportunity.

For the reasons assigned, the judgment of May 10, 1983 is amended to provide that only the suit of Marshall Hinchman, individually, is dismissed. The matter is remanded and the district court is ordered to allow plaintiff Marshall Hinchman, individually, an appropriate delay after this judg-merit becomes final to amend his petition to state facts supporting his individual cause of action. If plaintiff Hinchman fails so to amend, his case shall be dismissed.

Costs of this appeal are assessed equally among the parties. Assessment of other costs shall await final determination of the case.

AFFIRMED IN PART; AMENDED IN PART; AND REMANDED.


text:
    Doak WATTIGNEY, Janis Mickles, Individually, and on behalf of all others similarly situated v. JEFFERSON PARISH SCHOOL BOARD.
    No. 83-CA-557.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Larry Samuel, Samuel & Foshee, New Orleans, for plaintiffs-appellants.
    Jack A. Grant, Grant & Barrow, Gretna, for defendant-appellee.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   CHEHARDY, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “G”, wherein the trial court judge rendered judgment granting defendant’s motion for summary judgment. We remand for reasons expressed herein.

Plaintiffs, Doak Wattigney and Janis Mickles, who are certified teachers of exceptional children, are employed by defendant Jefferson Parish School Board. As “special education teachers,” plaintiff’s salaries are controlled by statutes, pertinent here in LSA-R.S. 17:427. When originally added by Acts 1960, No. 275 § 1 LSA-R.S. 17:427 reads as follows:

“Teachers of exceptional children who are employed in the public schools of this state and who are certified under the latest requirements as set forth by the state department of education or the state board of education as teachers of exceptional children shall be paid an amount equal to their base pay plus ten percent of this base pay.”

The 1977 Legislature, by Acts 1977, No. 607 § 1, amended LSA-R.S. 17:427. The mandatory fiat that school boards pay the ten percent supplement was removed, making such payment discretionary. However, the statute, as amended, protected those teachers already receiving the ten percent supplement by ordering that they would receive no reduction in pay. The statute, as amended, reads as follows:

“Teachers of exceptional children who are employed in the public schools of this state and who are certified under the latest requirements as set forth by the State Board of Elementary and Secondary Education as teachers of exceptional children may be paid an amount equal to their base pay plus ten percent of this base pay, provided, however, that no teacher presently receiving base pay plus ten percent will receive a reduction in pay.”

Suit was filed by plaintiffs seeking an undetermined amount of back pay based upon two errors defendant supposedly made in calculating salary supplement. These errors were alleged to be: (1) defendant’s failure to include in “base pay” that salary portion provided by the local school board instead basing the ten percent salary supplement solely upon the State’s contribution to plaintiffs’ salaries; and (2) defendant’s failure to include a Fifteen Hundred Dollar ($1,500) raise as provided by the 1977 State minimum salary schedule when calculating the ten percent salary supplement.

Defendant filed a motion for summary judgment contending that there were no genuine issues of material fact declaring that the single issue was whether the Jefferson Parish School Board was complying with the provisions of Act 607 of 1977 at the time the suit was filed. According to defendant’s interpretation of the statute, the ten percent salary supplement was no longer mandatory and the only duty placed upon the school board was not to reduce plaintiffs’ pay. As there was no reduction in the actual dollars received by the plaintiff as a result of the passage of Act 607 of 1977, it was defendant’s assertion that the school board was in compliance with that statute.

The trial court, believing the crucial issue raised by defendant’s motion to be solely the interpretation of Act 607 of 1977, granted defendant’s motion and dismissed plaintiffs’ petition. The trial court concluded:

“Thus, it is the conclusion of this Court that Act 607 of the 1977 Legislature relieved local school systems, such as the Jefferson Parish School Board, of the requirement to pay a mandatory ten (10%) percent supplemental salary to teachers of exceptional children except those teachers of exceptional children who were receiving supplemental pay at the time of the effective date of Act 607 of the 1977 Legislature could not suffer a reduction in pay. Since the parties to this suit have so stipulated that the plaintiffs have not suffered any reduction in pay, the Court grants the motion for summary judgment filed herein by the Jefferson Parish School Board.”

Summary judgment is granted only when the pleadings, depositions on file, answers to interrogatories and any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C. C.P. art. 966. The party seeking summary judgment shoulders the burden of showing the absence of any materially factual issue; any doubt must be resolved in favor of a trial on the merits. Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

While we do not find error in the trial court’s interpretation of LSA-R.S. 17:427, we do, however, believe that the issues raised by appellants’ petition are factual ones which were not addressed by the trial court. Therefore, summary judgment in this case is inappropriate.

As we believe there exist genuine issues of material facts, i.e., the issues raised by the petition, the judgment appealed from is reversed and the matter is remanded to the trial court for further proceedings consistent with the views herein expressed. All costs are to await a final determination of this case.

REVERSED AND REMANDED.


text:
    Jennie C. CIUFFI v. Katherine WILSON, Upstate Plumbing & Heating Co., Inc., and Aetna Casualty & Surety Co. (Aetna Life & Casualty Co.)
    No. 83-CA-558.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    John P. Campbell, III, Metairie, for plaintiff-appellant.
    John G. Miller, Jr., Timothy M. Waller, Sr., Metairie, for defendants-appellees.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   CHEHARDY, Judge.

Plaintiff Jennie C. Ciuffi appeals from a judgment awarding her $1,500, including interest from date of judicial demand, for personal injuries received in an automobile accident. Defendants are the driver, owner, and liability insurer of the other vehicle involved.

Allstate Insurance Company, plaintiffs own insurer, intervened for $1,153 paid to plaintiff under the medical payment provisions of its policy.

Following trial, judgment was originally rendered in favor of Mrs. Ciuffi for $1,500 in general damages. That judgment was amended at a later date to recognize inter-venor’s claim for $1,153 against all defendants. Plaintiff appealed from the original judgment, only insofar as quantum is concerned. No appeal was taken from the amended judgment, and that matter is not before us.

Plaintiff was the only witness to testify. Her medical evidence consists of the deposition of Dr. Kenneth Adatto, an orthopedic specialist and her treating physician, and periodic medical reports issued by him. The record also contains the medical reports of Drs. Luis Bogran and Francis Daly, and the x-ray report of Dr. Albert Hendler.

Defendants introduced the report of Dr. Irving Redler and Dr. A.N. Diodené, Jr.

Plaintiff testified the accident occurred on November 29, 1980 at the intersection of Codifer Street and Bonnabel Avenue in Me-tairie, Louisiana. She was travelling on Codifer, stopped at the first stop sign and proceeded across the neutral ground where she stopped for a second stop sign. She looked to the right and the left and saw defendant’s car coming, but since there was a stop sign for cars proceeding on Bonnabel, plaintiff expected the other driver to stop. Defendant driver failed to stop and struck plaintiffs vehicle as it proceeded across the intersection. Defendants do not seriously contest liability.

Plaintiff was jolted around in the automobile. She was dazed, numb and unable to move or to stand. Her knee struck the steering wheel and she had a headache and neck and back pain.

Plaintiff saw Dr. Daly on December 8, 1980, when her physical problems failed to improve. X rays were taken. She was treated on three occasions with hot packs on the knee and neck, and exercises for the right knee. Mrs. Ciuffi was discharged in March 1981.

Following her discharge, plaintiff consulted Dr. Adatto. She was again x-rayed and examined for injuries to her knee, neck and back. Treatment consisted of four injections to the knee.

Plaintiff stated that she had a prior knee problem and a back problem requiring hospitalization and traction five or six years ago, but had recovered prior to this accident. She was involved in an earlier automobile accident in 1978 sustaining a mild injury to the neck area that cleared up in a couple of months. She also has arthritis.

At this time Mrs. Ciuffi complains of neck ache, numbness and intermittent sharp pains in the right knee.

Dr. Daly’s medical report indicates he first saw plaintiff on December 8, 1980. She complained of pain in the neck, left shoulder, back and right knee following the accident of November 28.

A history was taken and x rays were made. Examination revealed tenderness and spasm in the cervical muscles and pain with compression over the vertebrae. The range of motion in the neck was mildly restricted, and there was tenderness in the right knee.

He diagnosed her injuries as acute cervical strain and soft tissue contusion of the right knee which may have aggravated a benign arthritic condition in the neck and the knee. Treatment consisted of medication, rest and physical therapy.

Plaintiff was re-evaluated on January 14 and March 25,1981. She continued to have objective findings, but had exhausted conservative measures and remained asymptomatic. The doctor recommended an orthopedic evaluation to determine if further active or advanced treatment was necessary.

The principal medical expert relied upon by plaintiff is Dr. Adatto. From Dr. Adat-to’s deposition and reports, it appears she first consulted him on April 24, 1981. A history and x rays were taken and a physical examination was performed. Plaintiff complained of pain in the neck and right knee. The doctor found spasm stress in the neck and x rays disclosed softening and irritation of the knee cap and arthritis of the knee.

Dr. Adatto concluded plaintiff had cervical spine syndrome with pre-existing asymptomatic arthritis, which had been aggravated by the accident, and that she had mild degenerative arthritis in the knees which had not bothered her before the accident, but which flared up afterward. He injected the right knee with local steroids and prescribed Norgesic, a muscle relaxant, and Anaprox, an anti-inflammatory compound.

When seen on May 12 plaintiff was 95% improved in the neck and knee area. He expected she would be completely recovered within two or three more months.

On December 3, 1981, plaintiff returned complaining of neck pain, but no problem with the knee. He x-rayed both areas and the condition was still the same. Plaintiff had mild spasm of the neck and was given an injection. She returned for a check-up two weeks later at the doctor’s suggestion. At that time she was doing very well and there were no objective findings. Plaintiff enjoyed round dancing and was told she could dance and enjoy herself.

On March 4, 1982, plaintiff returned complaining of knee pain. She was given an injection. The doctor stated her complaint, of a very minor nature, was probably related to the accident.

Plaintiff had gone from May to December without an injection and also from December to March without one. She was able to enjoy round dancing, and considering her age (69) the doctor concluded she was doing very well.

Dr. Irving Redler, an orthopedic specialist, examined plaintiff for defendants on October 20, 1981. He reviewed prior medical reports. While plaintiff told the doctor that therapy improved the condition of her knee and neck, she stated her knee problem interfered with her dancing and that the knee has a tendency to buckle and she is afraid to dance for fear of falling. ' Her neck still bothered her now and then, and she had complaints of pain in the lower part of her back since the accident.

The doctor gave her an orthopedic and neurologic examination. He x-rayed the cervical spine, lumbosacral spine, pelvis and both knees.

In his opinion, based on the history related by the patient, plaintiff sustained strains of her neck and lower back and contusion of her right knee as a result of the accident.

The orthopedic examination did not disclose evidence of residual disability or functional impairment of those structures, but did reveal a pelvic tilt due to idiopathic shortening of the lower left extremity. This was developmental in origin and not related to the accident. Redler concluded this could be a factor in the complaints of the right knee. The x-ray findings were of long standing and not related to the accident.

Plaintiff argues that the award of $1,500 including interest for personal injuries is incorrect and inadequate. We agree that the award for damages is separate and apart from the interest thereon and that plaintiff is entitled to interest in addition to the award. This appears to us to be an oversight or a typographical error in the trial court.

We conclude the trial court intended to award $1,500 for personal injuries, exclusive of interest, and we address the question of whether or not that sum is inadequate. Civil Code Article 1934 provides that in the assessment of damages, “... much discretion must be left to the judge or jury_” In Coco v. Winston Industries, Inc., 341 So.2d 332 at 335 (La.1976), our Supreme Court stated,

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award and then only to the extent of lowering (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. [Citations omitted.] * * * ”

The principles expressed in Coco were recently reaffirmed in Davenport v. Nixon, 434 So.2d 1203 (La.App. 1st Cir.1983); Reck v. Stevens, 373 So.2d 498 (La.1979), and Bolton v. MFA Mut. Ins. Co., 386 So.2d 144 (La.App. 3d Cir.1980).

In summary, defendants’ own expert concedes plaintiff sustained strains of her neck and lower back and contusion of the right knee as a result of the accident.

She was under medical care from December 8, 1980 to March 4, 1982, first by a general practitioner and, on his recommendation, by an orthopedic specialist. Because the injury caused plaintiffs knee to buckle she became afraid to continue round dancing, an activity which she enjoyed. We note plaintiff is 69 years old and this social activity is important to her. She still participates, but not to the same extent as she did prior to the accident.

Considering the injuries sustained, the duration thereof, plaintiffs age, and the fact that she still has minimal complaints, we are of the opinion the award should be increased to the sum of $7,500. In making this revision, we have disturbed the award only to the point of raising it to the minimum sum appropriate. Coco v. Winston Industries, Inc., supra.

For the reasons assigned, the judgment appealed from its amended to increase the award for personal injuries to the sum of $7,500, plus interest from date of judicial demand. All costs in both courts are to be paid by defendants.

AMENDED AND AFFIRMED.


text:
    STATE of Louisiana v. Freddie BATISTE.
    No. 83-K-616.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 7, 1984.
    Pamela J. Bayer, New Orleans, for relator.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for the State.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   BOWES, Judge.

Appellant Freddie Batiste was convicted of simple possession of marijuana in the 24th Judicial District Court. The conviction was based on evidence contained in two sealed brown envelopes seized by a police officer while Batiste was being treated for a gunshot wound at Charity Hospital in New Orleans.

The envelopes were taken to the police station and opened without benefit of a search warrant.

For the following reasons, we reverse Batiste’s conviction and remand to the district court for further proceedings.

The trial judge initially denied a motion to suppress and then tried Batiste, allowing the contents of the envelopes to be introduced as evidence under the “plain view” exception to the Fourth Amendment. However, one of the requisites of “plain view” is that it must be immediately apparent without close inspection that the item or items seized were either evidence or contraband. See State v. Hernandez, 410 So.2d 1381 (La.1982).

Inasmuch as the envelopes were not transparent and were sealed, there was nothing to immediately indicate to the officer that the envelopes might contain marijuana. This was not a drug or drug related matter.

Also, as Batiste was in a semiconscious state due to the bullet wound when a nurse removed his jacket, causing the envelopes to fall to the floor, there was no showing that Batiste abandoned his privacy interest in the envelopes. We believe a search warrant should have been obtained.

Accordingly, we reverse and set aside (1) the trial judge’s denial of the motion to suppress evidence and (2) Batiste’s conviction, and we remand this case to the 24th Judicial District Court for further proceedings.

REVERSED AND REMANDED.


author: GULOTTA, Judge.

text:
    Ross SCACCIA, and Ross Scaccia on Behalf of his Minor Child Rachel Anne Scaccia v. Robert LOWE, Terence L. Hauver, Michael Grosz, Lee Pullen, Opal Pullen, Vicki Pullen Scaccia or Vickie Pullen Scaccia Medley, Terence Medley and ABC Insurance Company and DEF Insurance Company.
    No. CA-1051.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Ross Scaccia, in pro. per.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Jack M. Alltmont, New Orleans, for appellees.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

A divorced husband appeals the dismissal by summary judgment of his damage suit against his former wife’s attorneys for their refusal to reveal the whereabouts of his minor daughter in the wife’s custody. We affirm.

In his original petition for damages, Ross Saccia alleged that his former wife Vicki had hidden their minor child and made her unavailable for visitation. Named as defendants were Robert Lowe and Terence L. Hauver, her attorneys during the divorce and separation proceedings, who allegedly “consistently cooperated with, aided, conspired with and abetted her in the seclusion and isolation of the minor child” contrary to court visitation orders by refusing to reveal her whereabouts to plaintiff. Scac-cia itemized damages for mental pain and anguish, loss of affection and “society” with his daughter, “impairment of workability” and financial loss.

In an amended petition, filed in response to an exception of vagueness, plaintiff alleged with greater particularity the attorneys’ refusal to disclose the whereabouts of Scaccia’s wife and the child, despite Scaccia’s three written demands.

The defendant attorneys filed an exception of no cause of action and a motion for summary judgment on the ground that they owed no legal duty to plaintiff to reveal any information concerning the child’s whereabouts. In attached affidavits, Lowe and Hauver averred that they had been retained by Vicki Scaccia in her domestic lawsuit against her former husband; that after their client moved to another state she had instructed them not to reveal her new address to any person under any circumstances; and that, pursuant-to those specific instructions, they have not and cannot reveal her new domicile.

Upon being satisfied that the wife’s address had in fact recently been disclosed to the plaintiff husband, the trial judge granted the exception of no cause of action and rendered a summary judgment dismissing plaintiff’s suit against the attorneys. In written reasons, the trial judge stated:

“Even assuming counsel’s knowledge of his client’s address is not privileged, his refusal to disclose the address to the husband is not actionable since he owed the husband no legal duty, to disclose.”

Appealing, Scaccia contends that information given by a client to an attorney is only privileged so long as: the privilege is asserted by those having a right to assert it; the withholding of information is’ legal; and, no harm is caused to other persons. He argues that he has a cause of action in tort against the attorneys because they owed a duty to him as natural father of the - minor child, and their illegal and unwarranted actions in withholding her whereabouts have caused him harm.

Neither party has cited, nor have we discovered, any Louisiana authority specifically directed to the issue whether the address of a client or information concerning his whereabouts is protected by the attorney-client privilege. A survey of cases in other jurisdictions indicates that foreign authorities are divided on this issue. See “Annotation: Disclosure of Name, Identity, Address, Occupation, or Business of Client as Violation of Attorney-Client Privilege,” 16 A.L.R.3rd 1047.

In a Missouri case factually similar to ours, however, an attorney representing a husband in a divorce action was not compelled to reveal his client’s whereabouts in a suit brought by the wife for conspiracy to secrete the husband and child, where the attorney had been specifically instructed by his client not to divulge. his address and there was no evidence indicating the attorney or his client was guilty of any criminal offense. The Missouri court applied the attorney-client privilege. See Ex parte Schneider, 294 S.W. 736 (Mo.App.1927).

Nonetheless, even assuming, without concluding, that the wife’s address is not privileged in the instant case, we conclude, as did the trial judge, that the defendant attorneys cannot be held liable to the husband in tort.

The defendant attorneys’ primary duty was to represent the interest of their client. Once instructed by her not to reveal her child’s whereabouts, they had an ethical obligation to honor her wishes. They owed no corresponding obligation to her adversary ex-husband. Indeed, to have revealed her whereabouts upon the husband’s simple demand would have violated their client’s confidence. Under these circumstances, the attorneys breached no legal duty to the husband and, therefore, cannot be held legally at fault for. his alleged consequential damages.

We recognize that an attorney, as an officer of the court, cannot, in the guise of zealous representation, deliberately flout a legally enforceable visitation order. Nonetheless, a deprived parent in plaintiff’s dilemma can seek redress by filing an appropriate rule to show cause in the court having jurisdiction of the custody matter to compel disclosure of the child’s whereabouts and enforce visitation. Such an approach is particularly appropriate where no criminal conduct is involved, and the attorneys are withholding the child’s whereabouts pursuant to their good faith perception of the attorney-client privilege.

For the foregoing reasons, the judgment dismissing plaintiff’s suit as against the defendant attorneys is affirmed.

AFFIRMED.

      . Also named as co-defendants were Scaccia’s former wife, her present husband, and her parents.


author: WILLIAMS, Judge.

text:
    Evelina JENKINS v. SCHWEGMANN’S BROTHERS GIANT SUPER MARKETS, INC.
    No. CA-1121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Madison C. Moseley, Metairie, for defendant-appellant.

      Gerald J. Leydecker, New Orleans, for plaintiff-appellee.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant appeals a trial court judgment awarding plaintiff $19,500.00 for injuries sustained in a fall at defendant’s supermarket, alleging that the award is excessive.

On November 15, 1978, at about 8:30 A.M., plaintiff Evelina Jenkins reached above her to select some sausage to purchase, and slipped in a puddle of water leaking from an empty refrigerated meat case which defendant was having replaced. She fell backward and hit her head on the floor; then her left leg folded under her as she landed on her back in the water leaking from the meat cooler. She was crying and was in great pain. Several store personnel helped her into a wheelchair, where she waited, wet and dirty, until her daughter came and picked her up. She went to a neighborhood doctor, who prescribed pain medication. She was bedridden and in great pain for 10 days, until she felt able to get out to see another doctor. She complained of headaches, back pain, and knee pain, and was treated by this second doctor, using diathermy and other procedures, until January 8, 1979. Plaintiff testified that before the accident she had been completely ambulatory, and had, in fact, walked the nine blocks to the supermarket the morning of the accident. After the accident, she was confined to bed much of the time, using crutches to get along around the house, and her cane and the support of others on her much rarer trips outside the house. On August 2, 1979, plaintiff underwent surgery totally replacing her knee.

Defendant argues that the award was excessive because of plaintiff’s pre-existing knee problems. Plaintiff had had left knee trouble since her youth and had undergone surgery removing the left kneecap in 1975. At that time, the possibility of a total knee replacement was first suggested to her because of the effects of degenerative joint disease. Defendant notes that plaintiff’s pre-accident knee x-rays and those taken after the accident are apparently identical. Defendant asserts that it should be responsible only for the damages plaintiff suffered from the time of the accident until her discharge, as recovered, from her treating physician on January 8, 1979, six and one-half weeks after the accident. Defendant claims it should not be held responsible for damages relating to the surgery in which plaintiff’s knee was replaced, as that surgery was inevitable long before the accident at the supermarket and had no causal connection to the accident.

Concerning appellate review of awards of damages, the Louisiana Supreme Court stated in its much-cited decision Reck v. Stevens, 373 So.2d 498 (La.1979):

the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after an articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive or insufficient, [citations omitted].

The Reck court further explained, citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), that even after finding an abuse of discretion, the appellate court could reduce or increase the award only to bring it to the highest or lowest extreme that would have come within the trial court’s wide range of discretion.

After reviewing the particular injuries and their effect upon this 71 year old plaintiff, we find we cannot reduce the trial court’s award. The plaintiff suffered pain and embarrassment at the supermarket, and once home was unable to leave her bed for ten days, so great was her pain. Her freedom became impaired by her lack of mobility. In her old age, the prospect of regaining the health, and returning to the independence, that she had before the setback of her fall, was small. Plaintiff’s doctor testified that the fall could have aggravated plaintiff’s knee condition, perhaps requiring the knee replacement surgery from six months to two years earlier than otherwise. The jury may have been generous in estimating the monetary value that the chance of postponing major surgery held for an elderly woman in her last years of life. Although we consider $17,-000.00 for general damages plus $2,500.00 for medical expenses to be near the top of the range of discretion afforded the trial court under the facts of this case, the Supreme Court’s directives as set forth in. Reck, supra, prevent us from modifying the award given by the trial court.

Based upon the foregoing reasons, the trial court judgment is AFFIRMED.

AFFIRMED.


author: WALKER, Presiding Justice,

text:
    GIBSON PRODUCTS CO. OF LAUREL, INC. v. Robert MARTIN.
    No. 54051.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    On Motion to Correct Judgment Jan. 25, 1984.
    Lawrence C. Gunn, Jr., Aultman, Tyner, Weathers & Gunn, Ltd., Hattiesburg, for appellant.
    J. Ronald Parrish, Laurel, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
    Before WALKER, P.J., and ROY NOBLE LEE and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

ON MOTION TO CORRECT JUDGMENT AND ASSESSMENT OF STATUTORY PENALTY

This cause comes on motion of appellant, Gibson Products Company of Laurel, Inc., to correct judgment and assessment of statutory penalty heretofore entered by this Court on December 14, 1983.

The judgment of the Circuit Court of Jones County in favor of appellee, Robert Martin, against appellant in the amount of $15,000.00 was affirmed by this Court without opinion on December 14, 1983. Upon so doing, this Court also assessed an additional amount of $2,250.00 against appellant, being damages at the rate of fifteen percent as provided for by Mississippi Code Annotated section 11-3-23 (Supp.1983).

The amount of the lower court’s judgment was satisfied prior to appellant perfecting its appeal. Therefore, appellant asserts it was error to assess the statutory damages.

The question presented is whether or not statutory damages should have been assessed a provided for under Mississippi Code Annotated section 11-3-23 (Supp. 1983) which reads in pertinent part: “In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%) as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. “This section clearly mandates that this Court assess damages at the rate of fifteen percent upon affirmance of a lower court’s judgment regardless of whether said judgment has been satisfied prior to an appeal being taken.

In Meek v. Alexander, 137 Miss. 117, 102 So. 69 (1924) we held that where a money judgment is rendered against a party litigant and he appeals to the Supreme Court and the judgment is affirmed, the successful party is entitled to statutory damages on the entire amount of the judgment rendered in the trial court and that a partial payment, after rendition of the judgment, did not authorize the statutory damages to be assessed only on the balance of said judgment.

The Court went on to say:

The section above quoted is in the nature of a penalty, or a condition of appeal, and affords also the basis of remuneration of the expense to the successful party, and must be calculated upon the sum adjudged or decreed in the court below where the judgment is for a sum of money.

102 So. at 70.

Therefore, the assessment of damages at the rate of fifteen percent on the entire judgment as provided for by statute was not error.

MOTION TO CORRECT JUDGMENT AND ASSESSMENT OF STATUTORY PENALTY OVERRULED.

PATTERSON, C.J., BROOM, P.J., ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.