author: LANIER, Judge.

text:
    BOARD OF COMMISSIONERS, FIFTH LOUISIANA LEVEE DISTRICT and Michael O. Hesse v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83 CA 1081.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Michael D. Hesse, St. Francisville, and C. Calvin Adams, Jr., Tallulah, for plaintiff-appellant Board of Commissioners for Fifth La. Levee District.
    R. Gray Sexton and Peter G. Wright, Baton Rouge, for defendant-appellee Comm, on Ethics for Public Employees.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit by the Fifth Louisiana Levee District (Levee District) and Michael Hesse against the Commission on Ethics for Public Employees (Commission) seeking injunctive relief and a declaratory judgment. The district court denied the injunction. No appeal was taken from this ruling. The district court also sustained the Commission’s peremptory exception that the Levee District had no right of action and dismissed the Levee District from the suit. From this judgment, the Levee District devolutively appeals.

FACTS

From May 15, 1981, to October 1, 1982, Michael Hesse was employed as an Assistant Attorney General with the Department of Justice of the State of Louisiana. While in that capacity, Hesse represented the Levee District in several cases. Upon Hesse’s resignation from the Attorney General’s office, the Levee District undertook to secure Hesse’s services for legal representation, pursuant to the authority of La.R.S. 42:263(B).

A proposed contract, which was to become effective October 13, 1982, was submitted by the Levee Board to the Attorney General’s office and the Division of Administration for routine approval. By letter dated November 30,1982, C. Calvin Adams, Jr., attorney for the Levee District, requested an advisory opinion from the Commission concerning the Levee District’s contract for professional services with Hesse. At its January 25, 1983 meeting, the Commission rendered advisory opinion No. 82-186. The Commission concluded that “the work Mr. Hesse would do for the Levee District ... was a service which he had performed as an employee of the Attorney General’s office and would have to be performed by the Attorney General’s office if Mr. Hesse is unable to do this work. Thus, the proposed work would be performed ‘for’ Mr. Hesse’s former agency, and he, therefore, is prohibited by Section 1121 B of the Code from entering into a contract with the Levee District to perform this work.” La.R.S. 42:1121(B) provides as follows:

General rule for other public employees. No former public employee shall, for a period of two years following the termination of his public employment, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such former public employee participated at any time during his public employment and involving the governmental entity by which he was formerly employed, or for a period of two years following termination of his public employment, render, on a contractual basis to or for the agency with which he was formerly employed, any service which such former public employee had rendered to the agency during the term of his public employment.

By letter dated February 8, 1983, the Levee District requested authority from the Commission to pay a bill for services rendered by Hesse between November 16, 1982, and December 27, 1982, in the amount of $2,119.00. These services were rendered by Hesse to the Levee District pending a final determination by the Commission of the propriety of Hesse’s contract with the Levee District. The Commission notified the Levee District that payment for these services “would be a violation of the Code, and if they were made, the Commission would pursue appropriate administrative remedies.”

RIGHT OF ACTION OF LEVEE DISTRICT

The Levee District contends that the trial court erred in maintaining the Commission’s exception of no right of action because it has an interest in the contract with Hesse for legal services which has been adversely affected by the Commission’s advisory opinion interpreting La.R.S. 42:1121(B).

The objection of no right of action is used to raise the question of the plaintiff’s interest in the subject matter of the litigation. More specifically, the essential function of the objection is to raise the question of whether a remedy afforded by law can be invoked by a particular plaintiff. Henry v. State, Department of Health and Human Resources, 435 So.2d 565 (La.App. 3rd Cir.1983), writ denied, 441 So.2d 750 (La.1983); Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir.1977).

In the instant case, the remedy sought is provided in the declaratory judgment codal articles (La.C.C.P. art. 1871 et seq.). These articles are remedial in nature and must be liberally construed. Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964).

La.C.C.P. art. 1872 provides, in pertinent part, as follows:

A person ... whose rights, status or other legal relations are affected by statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.

When declaratory relief is sought, all persons shall be made parties who have or claim any interests which would be affected by the declarations. La.C.C.P. art. 1880; Blanchard v. Naquin, 428 So.2d 926 (La.App. 1st Cir.1983), writ denied, 433 So.2d 162 (La.1983).

The contract between an attorney and his client may be one of mandate, La.R.S. 37:212(A)(1); La.C.C. art. 2985 et seq.; Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 107 (La.1978) (dissenting opinion by Justice Tate); C. Sklar, The Attorney-Client Relation in Louisiana, 18 La.L.Rev. 690 (1958), or may be one for lease of the attorney’s skill and labor, La. R.S. 37:212(A)(2); La.C.C. art. 2675 and arts. 2745 et seq. In either instance, the attorney agrees to perform a service for the client and the client agrees to compensate the attorney. If the contract is terminated (or nullified) as to one of the parties, it is terminated as to the other. The right to contract of one cannot be affected without also affecting the right of the other. In this posture, the Levee District is certainly a necessary party and possibly an indispensable party. Cf. Terra Development Corporation v. Southland Dragway, Inc., 442 So.2d 587 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1225 (La.1984).

The Commission cites Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285 (La.App. 1st Cir.1974), State Mineral Board v. Louisiana Commission on Governmental Ethics, 367 So.2d 1188 (La.App. 1st Cir.1978), writ denied, 368 So.2d 1097 (La.1978), and Board of Commissioners of Port of New Orleans v. Louisiana Commission on Ethics for Public Employees, 416 So.2d 231 (La.App. 1st Cir.1982), writ denied, 421 So.2d 248 (La.1982), for the proposition that the action of the Commission must prevent a public agency from carrying out its lawful functions before it is sufficiently "interested” in a matter to have a right of action. These cases are distinguishable from the instant case. All three cases dealt with investigations by the Commission into possible violations of the Ethics Code by members of the agencies. They were not investigations into activities of the agencies themselves. The agencies had no interest in the litigation unless it could be shown that the actions of the Commission would preclude the orderly transaction of the business of the agencies. However, in the instant case, the Commission is interpreting a statute in a way which would nullify the contractual rights and obligations of the Levee District and Hesse with each other. If the rights of Hesse are nullified, the rights of the Levee Board will also be nullified. The Levee Board has a right of action.

DECREE

For the foregoing reasons, the judgment of the district court sustaining the Commission’s peremptory exception pleading no right of action is reversed, and this action is remanded to the district court for further proceedings. The Commission is cast for the costs of this appeal of $50.00. La. R.S. 13:5112.

REVERSED AND REMANDED.

      . La.R.S. 42:263(B) provides as follows:
      Notwithstanding the provisions of Subsection A of this Section or R.S. 42:264, the governing boards of the Cane River Levee and Drainage District, the Campti-Clarence Levee District, the Natchitoches Levee and Drainage District, the Red River Levee and Drainage District, the Fifth Louisiana Levee District, and the Nineteenth Louisiana Levee District may retain or employ special counsel as needed and without the approval of the attorney general. (Emphasis added).

      . A signed contract between the Levee District and Hesse for legal services was introduced into evidence at the hearing on the exception; the term was from November 10, 1982, to November 9, 1983.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    Kirksey M. NIX, Jr. v. John KING, Ross Maggio, et al.
    No. 83 CA 1084.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Kirksey M. Nix, Jr., pro se.

      Houston T. Penn, La. Dept, of Justice, Baton Rouge, for defendants-appellees, John King, Ross Maggio, Col. Robert Bryant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from the granting of a peremptory exception of no cause of action against plaintiff-appellant, Kirksey M. Nix, Jr., and in favor of defendants-appellees, John T. King, Ross Maggio, Jr., Colonel Robert Bryant, Major E. Booker and Captain Billy Travis. Appellant is a prisoner in Angola State Penitentiary. On July 30, 1982, appellant was brought before the Louisiana Department of Corrections Disciplinary Board on the charge of dealing in narcotics and subsequently was found guilty of the charge. Next, appellant appealed the board’s finding to the Secretary of the Department of Corrections, Mr. John King. Appellant received notice on November 16, 1982, that the board’s finding had been affirmed. On that same day, appellant notified Mr. King by letter of his intention to seek judicial review of the action taken.

Appellant’s Petition for Judicial Review was received by the Clerk of Court for the Nineteenth Judicial District Court on December 22, 1982, but not formerly filed until February 25, 1983, due to appellant’s failure to perfect his right to proceed in forma pauperis until that date. Appellees responded to the petition with peremptory exceptions of no cause and no right of action. The basis of these exceptions was that appellant had failed to timely file his petition for judicial review under the Administrative Procedure Act, LSA R.S. 49:950, et seq. After a hearing conducted by the Commissioner for the Nineteenth Judicial District Court, the matter was submitted to the trial court which maintained the exceptions. We affirm.

We are of the opinion that appel-lees were in reality urging a peremptory exception of prescription, and thus, we will consider the issues raised in this appeal from that perspective. The Administrative Procedure Act is applicable to an agency adjudication proceeding of the Louisiana Department of Corrections. State ex rel. Armistead v. Phelps, 365 So.2d 468 (La.1978). Additionally, for the reviewing court to have jurisdiction in administrative determinations, it is essential that the request for judicial review or appeal be timely filed. West v. La. Dept. of Public Safety, 432 So.2d 273, 275 (La.App. 1st Cir.1982); Baloney v. DHHR, Office of Family Services, 364 So.2d 203 (La.App. 1st Cir.1978).

The time delay for filing a petition for judicial review of an agency determination under the Administrative Procedure Act is found in Section 964 which provides in part,

B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency, or if rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.

Appellant admits that he received the notice of the agency’s final determination on November 16, 1982. The Commissioner found that the notice would have had to be mailed on or before November 15, 1982, to have reached appellant on November 16, 1982. Therefore, the Commissioner determined that appellant’s petition would have had to be filed on or before December 14, 1982, to have been timely. In his brief, appellant maintains that the notice was hand delivered on November 16, 1982. Assuming this to be true, the thirty day delay would have begun on November 17, 1982, and would have expired on December 16, 1982. See State ex rel. Armistead v. Phelps, supra at 469.

Appellant maintains that he placed his petition for judicial review in the prisoner’s mail box on December 15, 1982. The Commissioner noted in his report that the envelope which contained the petition was postmarked December 17, 1982. Regardless of when the petition was mailed, the fact remains that it was not received by the clerk’s office until December 22, 1982, and not filed until February 25, 1983. Therefore, even if we assume that appellant’s delay expired on December 16, 1982, it is apparent that his petition was not even received by the clerk’s office within the delay allowed.

Appellant maintains that due to certain delays faced by prisoners in having access to legal materials, in having prison accounts verified for forma pauperis qualification and in having mail picked up by prison officials rather than the U.S. postal system, the application of LSA R.S. 49:964 denies him equal protection, due process and access to the courts. We disagree.

As noted by this Court in the recent case of Williams v. Lallie Kemp Charity Hosp., 428 So.2d 1000, 1009 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1093 (La.1983),

The Louisiana and federal constitutions both require equal protection of the laws. U.S. ConstAmend. XIV; La. Const, art. I, § 3. When a claim is made that a law violates these provisions, and the claimant belongs to a class receiving disparate treatment, a determination must be made as to whether the law impinges • on a “fundamental right” or operates to the disadvantage of some “suspect class.” If the law does either of the above, it will be subject to strict scrutiny and be declared invalid unless it is shown that a “compelling governmental interest” exists; if neither a suspect class nor a fundamental right is involved, the test is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Bazley v. Tortorich, 397 So.2d 475 (La.1981); Everette v. Goldman, supra.

We are simply of the opinion that appellant does not belong to a class receiving disparate treatment under the Administrative Procedure Act. Appellant maintains that prisoners as a class have special problems in attaining access to legal materials necessary to draft petitions. This Court, in Martin v. Phelps, 380 So.2d 164 (La.App. 1st Cir.1979), was called upon to determine the constitutional sufficiency of the legal aid system at the very institution appellant is confined to. The legal aid system at Angola was found to provide adequate alternatives, including book check-out procedures and the assistance of counsel substitutes, to those inmates not allowed direct access to the prison law library, so as not to violate inmates’ constitutional right to access to the courts.

Appellant next maintains that prisoners as a class receive disparate treatment in that they do not have the same right as free persons to direct access to the U.S. Postal System. Appellant alleges that a prisoner must deposit his mail into a prison mail pick-up which then must be processed before it reaches the federal system. He further maintains that the delay involved in such a system prevented his petition from being received by the clerk’s office within the delay provided by Section 964. Appellant has continually maintained that he placed his petition in the prison mail pickup on December 15, 1982, although there is no other evidence supporting this allegation. Even if we accept appellant’s allegation as true, it does not alter the fact that it took the petition six days to reach the clerk’s office from when it was postmarked by the U.S. Postal System. Thus, even if appellant were allowed direct access to the U.S. Postal System, by waiting until the next to last day to mail the petition, it would not have been received by the clerk’s office within the time period allowed.

Next, appellant alleges that prisoners are required to have their prisoner bank accounts verified by prison officials for the purpose of qualifying to proceed in forma pauperis. It is appellant’s contention that no such requirement is imposed on free persons, and thus, prisoners receive disparate treatment. We simply note that appellant did not begin this process until well after the time delay had passed.

In conclusion, we are of the opinion that Section 964 of Title 49 places no greater burden on prisoners than on free persons, either on its face or in its application. We note that in a letter admitted into evidence on the exception of no right of action, appellant candidly admitted to an attorney he was corresponding with that he simply put-off mailing his petition until the very last or next to last day.

As evidenced by the provisions of the Administrative Procedure Act, in particular LSA R.S. 49:964, the legislature has provided both the right and the procedure to preserve judicial review of final administrative agency determinations. The requirements of due process are satisfied by the availability of judicial review. Anderson v. State, 363 So.2d 728 (La.App. 2nd Cir.1978), writ denied, 364 So.2d 600 (La.1978).

We are of the opinion that appellant was afforded equal protection, due process and access to the courts. The fact that appellant failed to take appropriate steps to perfect his right does not render the Administrative Procedure Act constitutionally infirm. By appearing pro se, appellant assumed the responsibility for his inadequacy and lack of knowledge of procedural and substantive law. Joiner v. Downing, 383 So.2d 93 (La.App. 3rd Cir.1980). This is particularly true in this case in that appellant had assistance available to him had he chosen to use it. See Martin v. Phelps, supra.

Therefore, for the foregoing reasons, the judgment pf the trial court dismissing appellant’s petition is affirmed. Costs of this appeal are taxed to appellant.

AFFIRMED.

      . Everette v. Goldman, 359 So.2d 1256 (La.1978).


author: WATKINS, Judge.

text:
    Anthony BOLDEN v. GEMOCO, INC. and Life Insurance Company of the Southwest.
    No. 83 CA 1087.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Joseph W. Thomas, Atty., New Orleans, for plaintiff and appellant.
    Joseph Weigan and Donna L. Cobb, Wei-gand, Weigand & Meyer, Houma, for defendants and appellees.

      Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action for worker’s compensation brought by Anthony Bolden against his former employer, Gemoco, Inc., and his former employer’s worker’s compensation insurer, Northwest Insurance Company. The trial court denied benefits. We affirm.

Mr. Bolden was employed by Gemoco as a warehouseman when, on January 9, 1980, Mr. Bolden injured his back while picking up boxes.

Mr. Bolden was kept on the Gemoco payroll and returned to light duty in February 1980. Plaintiff complains he was in pain the entire time and is still in pain. He finally discontinued working August, 1981.

Mr. Bolden went to see Dr. Christopher Cenac, an orthopaedic surgeon of Houma, who ran multiple tests on two occasions, once in 1980 and once in 1981. These tests included an EMG, CT scan, and myelo-gram. All the tests were negative. Dr. Cenac, who was a company physician for Gemoco, testified by deposition that in his opinion the pain complained of had no objective basis, and strongly suggested Bol-den was a malingerer.

Dr. Pete Rhymes, an orthopaedic surgeon of Houma, a physician of Mr. Bol-den’s own choosing, saw Mr. Bolden from September 1981 until February 1983. Dr. Rhymes likewise ran multiple tests on Mr. Bolden, which were likewise negative. Dr. Rhymes, who testified live at trial on the merits, appeared to some degree to be of the view that Mr. Bolden was really experiencing pain, but testified that the pain had no objective basis and his finding of pain was based purely on Mr. Bolden’s recitation of alleged symptoms to him as a physician.

Mr. Bolden testified live at trial on the merits, and indicated he was still in pain. His testimony, although not entirely unconvincing, was obviously not believed by the trial judge, who found that Bolden had indeed sustained an injury to his back, from which he had recovered as of April 30, 1980, without continuing disability.

Counsel for plaintiff contends that Dr. Rhymes’ testimony was in conflict with that of Dr. Cenac, and that the trial court erred in preferring the testimony of Dr. Cenac to that of Dr. Rhymes. It is true that the trial court indicated that the testimony of the two physicians conflicted, and that the trial court accepted the testimony of Dr. Cenac as being correct. However, there is no real conflict between the physicians as to objective fact. Both performed tests, which were entirely negative. Dr. Rhymes testified his opinion that Mr. Bol-den was indeed in pain was based solely upon his patient's recitation of pain, not upon objective examination or testing. The trial court, which observed Mr. Bolden on the stand, obviously believed that there was no objective permanent injury, and that Mr. Bolden was not experiencing pain. In that view, we cannot say the trial court, which had the benefit of observing Bolden on the stand, was clearly wrong or manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Thus, there being no manifest error, we must affirm.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Reginald DYSON v. CHAMPION INTERNATIONAL, et al.
    No. 83 CA 1097.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Robert T. Hughes, New Orleans, for plaintiff-appellant Reginald Dyson.
    John W. Perry, Baton Rouge, for defendants-appellees Champion Intern, and Aetna Cas. & Sur. Co.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff, Reginald Dyson, appeals a judgment dismissing a workers’ compensation claim on an exception of prescription filed by his employer, Champion International Corporation, and its insurer, Aetna Casualty & Surety Co.

Plaintiff was injured in the course and scope of his employment for Champion on or about September 2, 1981. Plaintiff filed suit on January 18, 1983, alleging that he was rendered temporarily and partially disabled as a result of the accident.

The trial court maintained defendants’ peremptory exception of prescription because suit was not filed until more than sixteen months after the accident. Plaintiff does not now argue that any workers’ compensation benefits were paid by defendants and then cut off, nor does he argue that his injury did not manifest itself immediately. Plaintiff’s sole contention is that the prescriptive period for all partial disability claims is three years from the date of the accident; thus, plainitff asserts that the trial court erred in maintaining defendants’ exception of prescription.

LSA-R.S. 23:1209 provides for three prescriptive periods for worker’s compensation claims. It provides that a claim for benefits is not prescribed if properly filed within: (a) one year after the accident, or (b) one year after the last payment of compensation, except in cases of partial disability, when the period of three years after the last payment of compensation applies, or (c) one year from the time the “injury develops” if the injury “does not result at the time of, or develop immediately after the accident”, but in no event more than two years after the accident.

The pertinent language of LSA-R.S. 23:1209 is not ambiguous. A partially disabled claimant is granted three years to file suit only when compensation payments have been made and subsequently discontinued. When no compensation benefits have been made, then the three year period is not applicable. See, Fontenot v. South Central Bell Telephone Co., 422 So.2d 695 (La.App. 3rd Cir.1982). No compensation payments were made to this claimant; therefore, the applicable prescriptive period was properly held below to be one year from the date of the accident.

Accordingly, we find no error in the trial court determination that plaintiffs claim had prescribed. Judgment is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . 1209. Prescription
      In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

      . Malone & Johnson, Workers’ Compensation, § 384, 14 La.Civ. Law Treatise 241, et seq. (2d Ed.1980).


author: CRAIN, Judge.

text:
    Lusety MARSHALL v. Elmer BRUMFIELD, et al.
    No. 83 CA 1098.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Harry E. Cantrell, Jr., New Orleans, for plaintiff-appellant Lusety Marshall.
    Roy L. Wood, Amite, for defendant-ap-pellee Elmer Brumfield, et al.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court maintaining defendant’s peremptory exception of no right of action and dismissing plaintiff’s suit.

FACTS

Plaintiff, Lusety Marshall, petitioned to have declared a nullity an act of sale of 80 acres of land by Peter Brumfield to Melton Brumfield which was executed February 10, 1926, and recorded in the conveyance records of Tangipahoa Parish. Plaintiffs petition states that she is the granddaughter of Peter Brumfield.

Defendants, heirs of Melton Brumfield, excepted to plaintiff's petition on the grounds that plaintiff had asserted no facts giving her a right of action to have the sale annulled. The trial court maintained the exception and dismissed plaintiffs suit. From that judgment, plaintiff appeals. Defendants answered the appeal, asking for $1000 in attorney fees for plaintiff having taken a frivolous appeal.

In cases where the law grants a remedy to certain persons for the particular harm alleged by the plaintiff, the exception of no right of action raises the issue of whether the plaintiff belongs to that particular class to which the law grants a remedy. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). Plaintiff, through her pleadings, seeks to have declared null an act of sale passed by her grandfather, alleging that it constituted a disguised donation. Her pleadings state, in pertinent part, “[Pjetitioner is the granddaughter of the late Peter Brumfield and as such has inherited an interest in the following described property...”.

La.C.C. art. 2444 provides:

The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale. (Our emphasis).

La.C.C. art. 1491 provides:

Every disposition in favor of a person incapable of receiving, shall be null, whether it be disguised under the form of an onerous contract, or be made under the name of persons interposed.
The father and mother, the children and descendants and the husband or wife of the incapable person, shall be reputed persons interposed.

Only forced heirs have been granted the remedy which plaintiff seeks in this case. La.C.C. art. 2444. At no point in her pleadings did plaintiff allege that she is a forced heir of Peter Brumfield by way of representation of a predeceased forced heir. She alleges only that she is his granddaughter. That declaration alone is inadequate to establish plaintiffs right of action in this case. We affirm the judgment of the trial court sustaining defendant’s exception.

While we uphold the ruling of the trial court on the exception itself, we find that it erred in not allowing plaintiff an opportunity to amend her pleadings so as to state a right of action. When the ground of exception can be removed by amendment, the trial court must allow petitioner opportunity to amend. La.C.C.P. art. 934; Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3rd Cir.1979); Sick v. Bendix-United Geophysical Corporation, 341 So.2d 1308 (La.App. 1st Cir.1976).

If the facts so warrant; plaintiff may be able by amendment of her pleadings to allege a right of action in this case. Therefore, we remand to allow plaintiff a period of time to be determined by the trial court to amend her petition to sufficiently state a right of action.

In view of the remand, defendants’ request for attorney fees for plaintiff taking a further appeal is denied. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    SHARKEY’S, INC. v. BAYOU OAKS RESTAURANT, INC., Reuben F. Ruiz, Jr. and Tony Milazzo, Jr.
    No. 83 CA 1101.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    William T. Lowrey, Jr., Baton Rouge, for plaintiff-appellant Sharkey’s Inc.
    Vincent J. Sotile, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for defendant-appellee Tony Milazzo, Jr., and Bayou Oaks Restaurant, Inc.
    John A. Gutierrez, Gonzales, for defendant-appellee Reuben F. Ruiz.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is a suit on a note in the sum of $20,000.00 executed ancillary to a lease to become enforceable in the event the lease was terminated by the lessee without sixty days notice to the owner-lessor. The trial court rendered summary judgment in favor of the defendants. We affirm.

On December 21, 1981, Sharkey’s Inc. leased restaurant premises to Bayou Oaks Restaurant, Inc. for a term of six months, beginning December 11, 1981, by written instrument. Both sides agree that the premises were not vacated until the expiration of the six months lease term.

Plaintiff’s petition seeks recovery on the $20,000.00 note. Annexed to the petition are copies of letters putting the maker of the note, Bayou Oaks Restaurant, Inc., and Tony Milazzo and Reuben Ruiz, endorsers of the note, in default under the terms of the lease as having violated Paragraph 20 thereof. Thus, the cause of action that is asserted, giving the petition and the annexed letters a broad interpretation, is one to enforce the note for breach of Paragraph 20 of the lease. Paragraph 20 of the lease instrument reads as follows:

20. DEFAULT OF TENANT.
(A) If Tenant violates at any time any of the covenants, conditions, and obligations of this agreement and said violation continues for ten (10) days after notice thereof by Owner to Tenant; or the Tenant’s vacating or abandoning the leased premises; or the Tenant being adjudicated a bankrupt, or a receiver being appointed for the Tenant, or bankruptcy, receivership or respite proceedings being instituted by or against Tenant, or the Tenant’s removing or beginning to remove from the leased premises during the terms of this lease, other than in the normal course of business, its personal property or goods, to the prejudice of the lessor’s lien, shall, without any demand (except where expressly required), or putting in default, give Owner the right, to cancel this lease by written notice of such cancellation to the Tenant, and collect rental accrued to the date of said cancellation. If it shall be reasonably necessary for Owner to employ an attorney in connection with the enforcement of any of the terms of this lease not involving a specific sum of money after demand has been made and after the time for performance has lapsed without such performance, the Tenant agrees to pay the reasonable fee of the attorney so employed.

Opposing motions for summary judgment were filed by Sharkey’s on the one hand and by Bayou Oaks and Milazzo on the other hand supported by conflicting affidavits which differ diametrically as to the facts tending to show or to contradict the showing of a breach of Paragraph 20 of the lease. In addition, a third party demand was filed by Ruiz against Milazzo.

The difficulty with the position taken by plaintiff is that the note is to become enforceable, by the terms of the lease, only under Paragraph 19 of the lease in the event that the lease is terminated by the action of the lessee without giving the required sixty days written notice. This is amply demonstrated by quoting Paragraph 19 of the lease instrument:

19. TENANT’S RIGHT TO TERMINATE LEASE. Tenant shall have the right to terminate this lease prior to the expiration of its term upon notice of such intent being sent to Owner at lease (sic) SIXTY (60) days prior to the date Tenant terminates this lease. Failure to give such notice shall automatically put Tenant in default without the requirement of notice or demand and terminate this lease. It is specifically stipulated that if the lease is terminated without Tenant giving the required SIXTY (60) day notice to Owner, Owner shall be entitled to demand from Tenant the payment of a $20,000.00 note dated of even date, and endorsed in blank, executed by Bayou Oaks Restaurant, Inc., made payable to itself, stipulated to bear interest at the rate of 0% from date, and made payable 20 days after written notice of default by Owner to Tenant. Said note has been paraphed “Ne Varietur” by Larry D. Book, Notary Public, and delivered to Owner, who acknowledges receipt hereof.

Thus, allegations in the letters attempting to place defendants in default, and in the affidavit in support of summary judgment asserting or tending to allege that Paragraph 20 of the lease has been breached are of no possible relevance to the cause of action asserted, which is brought solely to enforce the note. It is only if it is asserted in petition or affidavit that Paragraph 19 has been breached that a genuine issue of material fact exists which would act as a bar to granting summary judgment in favor of defendants Bayou Oaks. and Milazzo.

Sharkey’s contends as an alternate argument that notice is required of termination of the lease even if the lease expires of its own accord at the end of the six month stipulated term, and that this requirement of the lease was breached. A mere glance at Paragraph 19 of the lease instrument, quoted above, demonstrates that notice of termination is required only if the lease is terminated by the lessee “prior to the expiration of its term ...”. Thus, no notice was required, and the note is not enforceable for termination of the lease of its own accord without notice.

As Paragraph 19 of the lease is brought into play only in the event of termination of the lease by the lessee, and as it is only in that event that the note in the sum of $20,000.00 becomes enforceable, there is no genuine issue of material fact, the note in no event being enforceable under the facts as to which there is disagreement. Hence, summary judgment was properly granted in favor of Bayou Oaks and Milazzo.

The judgment of the trial court dismissing plaintiff’s action as to Bayou Oaks Restaurant and Larry Milazzo, Jr., is affirmed. To the extent that the effect of the judgment is ambiguous as to Reuben Ruiz, that cause of action is maintained in force, Ruiz not having moved for summary judgment. All costs shall be paid by appellant.

AMENDED AND AFFIRMED.


text:
    Toni Marie R. HENDRIX v. Donald Otis HENDRIX.
    No. 83 CA 1109.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      James R.E. Lamz, Slidell, for plaintiff, appellant.
    Donald Otis Hendrix, defendant-appellee, in pro. per.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This matter commenced as a rule by a divorced wife for $647.17 in delinquent child support, contempt of court against the husband for failure to pay child support, reimbursement of medical and dental expenses and a $1,000 attorney fee for prosecuting the child support claim. The district court rendered judgment in favor of the wife for past due child support of $150, with legal interest thereon from date of judicial demand until paid. Judgment was rendered in favor of the husband dismissing the contempt citation and denying the claim for an attorney fee. No judgment was rendered on the claim for reimbursement of medical and dental expenses. The district judge also ordered the husband to make all future child support payments directly to the wife. The wife took this devolutive appeal.

I. FACTS

On May 22, 1971, Toni and Donald Hendrix were married. One child, Brian, was born of the marriage on January 12, 1973. On February 6, 1981, Mrs. Hendrix filed suit for a divorce. On May 20, 1981, Mr. Hendrix filed a separate suit for divorce and custody of the child. The two suits were consolidated for trial. On February 2, 1982, a judgment of divorce was rendered in favor of Mr. Hendrix; Mrs. Hendrix was awarded custody of their minor child and was granted $150 per month child support; and Mr. Hendrix was ordered to maintain their child on his insurance policies.

DELINQUENT CHILD SUPPORT PAYMENTS

At the hearing on the rule, Mrs. Hendrix testified that Mr. Hendrix missed the following payments: June, 1982 — $75; July— $75; August — $25; September — $75; November — $100; March, 1983 — $150; April —$75; and June — $75 (for a total amount due of $650). Mr. Hendrix admitted that he owed the amounts claimed by Mrs. Hendrix for April and June, 1983, but claimed he missed these payments because he had to make repairs to his vehicle and Mrs. Hendrix said it was all right. Mr. Hendrix further claimed the remaining payments were not made to Mrs. Hendrix but were made for the child and were “made in other ways such as doctor appointments, school lunch fees, school supplies, football, basketball, things to do with his yearly activities.” To support his contention, Mr. Hendrix submitted an itemized list of expenditures and cancelled checks. Mrs. Hendrix denied that she gave him permission to make these payments to others, except to pick up a Sears suit, and the rest “he has done this on his own”.

The district court judge ordered Mr. Hendrix to pay $150 as past due child support and to make all future payments directly to Mrs. Hendrix. In his written reasons for judgment, the district court judge stated, “[t]he Court rendered this judgment in light of the evidence produced at the trial of the rule with the thought to do justice to both sides in this matter.” Mrs. Hendrix contends on appeal that the trial court erred in giving Mr. Hendrix credit for payments he made to others on behalf of their minor child.

Justice or equity will not nullify or reduce an accumulated alimony or child support award until the judgment is altered or amended by a subsequent judgment or is terminated by operation of law. Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir.1983); Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir.1979). The party to whom the alimony or child support award is made is the party entitled to those payments and is the owner thereof. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); McManus v. McManus, 428 So.2d 854 (La.App. 1st Cir.1983). That person is entitled to spend the payment as he or she chooses. McManus, 428 So.2d at 856; Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir.1979). Alimony or child support remains in full force and effect in favor of the party to whom it is awarded until the party ordered to pay it has the judgment modified or terminated by a court. Halcomb, 352 So.2d at 1015-1016; Weatherspoon v. Weatherspoon, 433 So.2d 319 (La.App. 1st Cir.1983). However, this court held in Weatherspoon, 433 So.2d at 321, and Vallaire, 433 So.2d at 317-318, there are two jurisprudential exceptions to this rule: (1) when the evidence shows the parties have clearly agreed to waive or otherwise modify the court-ordered payments, or (2) when the mother has voluntarily placed custody of all the children with the father.

In the instant ease, the second exception is inapplicable because Mrs. Hendrix has not voluntarily surrendered custody of the minor child and still retains custody. Therefore, the judgment granting Mr. Hendrix credit for payments made to others must have been based on a finding that an agreement was entered into between the parties modifying the court-ordered payments.

For such an agreement to be effective, the parties must clearly agree to the modification. The burden of proof is on the party claiming the agreement to prove its existence. Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982). The district court has great discretion in determining factual matters, such as the existence of any agreement relative to child support, and, in the absence of abuse, its decision will not be overturned on appeal. Feazell v. Feazell, 445 So.2d 143 (La.App. 3rd Cir.1984).

A review of the testimony of the parties does not reveal that an agreement existed between them which authorized Mr. Hendrix to satisfy his support obligation by paying others for expenses incurred on behalf of the child. Mr. Hendrix acted unilaterally and not by agreement with Mrs. Hendrix. By granting the award of $150 for April and June of 1983, the district court apparently rejected the testimony of Mr. Hendrix that he used this money for vehicle repair with the consent of Mrs. Hendrix. The district court judgment for past due child support is clearly wrong.

The district court’s award of $150 for past due support is increased to $650.

LEGAL INTEREST

The trial court awarded legal interest on the past due child support “from the date of judicial demand until paid.” Mrs. Hendrix contends on appeal that legal interest on an award of past due child support should be granted for each installment from its date due.

It is well settled that a party awarded past due child support is entitled to legal interest on each past due installment from the date the installment was due until paid. Miller v. Miller, 321 So.2d 318 (La.1975); Manuel v. Manuel, 443 So.2d 729 (La.App. 4th Cir.1983); Chaudoir v. Chaudoir, 430 So.2d 280 (La.App. 3rd Cir.1983); Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982).

The district court’s judgment awarding legal interest from date of judicial demand is clearly wrong and is reversed. Legal interest is awarded to Mrs. Hendrix on each past due child support payment from date each installment was due until paid.

MEDICAL EXPENSES

The district court judgment did not rule on Mrs. Hendrix’s claim for reimbursement of medical expenses. Silence in a judgment as to any part of a demand made in a litigation is construed as a rejection of that part of the claim. Succession of Kelly v. Schauff, 323 So.2d 243 (La.App. 1st Cir. 1975). Mrs. Hendrix contends in an assignment of error that she is entitled to be reimbursed for these expenses.

Mrs. Hendrix testified that she paid the following medical expenses on behalf of their child: drugs—$16.76; Dr. Lindsay— $182.00; and Dr. Guevara—$92.00 (for a total of $290.76). She submitted the bills to Mr. Hendrix for reimbursement, but she has not been paid.

Mr. Hendrix was ordered in the divorce judgment to carry his child on his insurance policies. He testified that the child is covered on his medical and dental insurance policy with Governmental Employees Insurance Company. He acknowledged that he has not reimbursed Mrs. Hendrix for these expenses, but he did supply her with medical and dental forms for Blue Cross (his previous insurer) and all she had to do was send them in to her doctor. Mrs. Hendrix denied receiving any forms and claimed she was told by Mr. Hendrix that he would bring the form down to Dr. Lindsay. She testified that Mr. Hendrix gave her his word that he would settle this and file the insurance form.

The testimony at the hearing supports the district court’s finding that Mr. Hendrix has complied with the order requiring him to maintain insurance on their minor child. However, it is obvious that a conflict exists between the parties concerning the procedure for filing the insurance claims. The district judge told Mr. Hendrix in court to “[mjaintain the child on the insurance policies, make them available to the mother of the child and let’s solve this thing.” Although it may be more convenient for Mrs. Hendrix to fill out the forms because of her knowledge of the medical expenses incurred for the child while in her custody, we feel that it is the responsibility of Mr. Hendrix, as the insured under the policies, to submit the claims to his appropriate insurance company.

A judgment ordering a person to be covered by another’s insurance is meaningless if there is no cooperation to secure payment under the coverage. The coverage ordered in the instant case is for the benefit of the child. It is part of the support obligation of the husband. Because Mrs. Hendrix has custody, she is primarily responsible for providing health care for the child. If she is required to make a cash outlay to secure treatment, she is entitled to reimbursement if the treatment is covered by the insurance ordered in the judgment.

Therefore, in the interest of justice, Mr. Hendrix is ordered to submit a claim to his appropriate insurer for the medical expenses incurred on behalf of the child which have been paid by Mrs. Hendrix and give any insurance reimbursements to Mrs. Hendrix. Mrs. Hendrix is responsible for any deductible amounts and any amount not subject to the coverage. This procedure shall also apply to all future medical expenses paid by Mrs. Hendrix on behalf of the child for which Mr. Hendrix has coverage.

ATTORNEY FEES

Mrs. Hendrix requested a reasonable attorney fee for the prosecution of the rule. This claim was denied by the district court. Mrs. Hendrix contends the district court abused its discretion in denying her demand for an attorney fee for prosecution of the rule and seeks an additional attorney fee award for the prosecution of this appeal.

La.R.S. 9:305 provides for attorney fees in child support proceedings, in pertinent part, as follows:

When the court renders judgment in an action to make past due ... child support executory, ... except for good cause, the court shall award attorney fees and costs to the prevailing party.

The trial court has discretion in denying attorney fees if good cause is shown for nonpayment of the child support. Davis v. Davis, 428 So.2d 1195 (La.App. 5th Cir.1983). Mr. Hendrix’s attempt to pay his child support obligation in ways other than by direct payments to Mrs. Hendrix is not good cause because no agreement existed between the parties for such payment. Cf. Thompson v. Thompson, 428 So.2d 858 (La.App. 1st Cir.1983); Hamilton, 421 So.2d 291. The judgment denying this claim is clearly wrong and is reversed.

Mrs. Hendrix is awarded an attorney fee of $250 for the prosecution of the child support rule. Since Mrs. Hendrix was successful in this appeal in having the amount of arrearage increased (from $150 to $650), she is also awarded a $200 attorney fee for prosecuting this appeal. Cf. Hamilton, 421 So.2d at 291.

DECREE

For the foregoing reasons, the judgment awarding past due child support payments is amended to increase the award to $650; the judgment granting legal interest on the past due child support payments from date of judicial demand is reversed and legal interest is granted on each past due payment from its date due until paid; and the judgment denying the claim for an attorney fee is reversed and appellant is awarded an attorney fee of $250 for the child support rule and an additional $200 fee for this. appeal. The district court judgment is further amended to order Mr. Hendrix to submit a claim to his insurer for $290.76 for medical expenses incurred by Mrs. Hendrix on behalf of their child and transmit any insurance payments received by him to Mrs. Hendrix; Mrs. Hendrix is responsible for payment of any portion of the claim which is not covered by insurance or for which a deductible is applicable. Mr. Hendrix is cast for all costs.

AMENDED AND AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . Mrs. Hendrix apparently remarried and was referred to at the hearing on the rule as Toni Hendrix Sollberger. For purposes of simplicity, she will be referred to in this opinion as Mrs. Hendrix.

      . The second exception has only been recognized by the Second Circuit thus far.

      . Appellant did not appeal the dismissal of the contempt citation and that judgment is now final.


author: CARTER, Judge.

text:
    Robert H. BLANTON, III v. STATE of Louisiana, et al.
    No. 83CA1112.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Bart Eaton, Bert Garraway, Baton Rouge, for plaintiff-appellant, Robert H. Blanton, III.
    Cynthia D. Young, Baton Rouge, for defendant-appellee, State of La.
    A.J. Paul Fredrickson, II, Baton Rouge, for defendant-appellee, Cosmo Martello.
    Clinton Hyatt, Baton Rouge, for defendant-appellee, Nolin Robert Clayton.
    Abbott J. Reeves, Gretna, for defendant-appellee, Hon. Aubert Talbot.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Plaintiff, Robert H. Blanton, III, devolu-tively appeals the rulings of the trial court maintaining exceptions of prescription and no cause of action filed by four of the five defendants.

On June 15, 1973, plaintiff was convicted of murder and sentenced to life imprisonment. He subsequently filed a writ of habeas corpus in federal district court asserting that the prosecutor, Aubert Talbot, failed to fully disclose certain arrangements made with key prosecution witnesses. Based thereon, on June 29, 1980, Federal District Judge Frank Polozola vacated plaintiff’s conviction and ordered the State to retry plaintiff within 120 days or to release him from custody. The State chose not to retry plaintiff and released him from custody on October 2, 1981.

Plaintiff filed suit based on “the intentional deprivation by Defendants of Petitioner’s constitutional rights” on September 30, 1982, naming as defendants the State of Louisiana, the State’s witnesses in the prosecution of Blanton, viz. Cosmo Martello, Celia Harris, Nolin Robert Clayton, and Aubert Talbot, District Attorney for the Twenty-Third Judicial District. Martello, Clayton, Talbot and the State filed exceptions of no cause of action and prescription. All of these exceptions were sustained by the district court.

Plaintiff perfected appeals from all of the judgments sustaining these exceptions: Martello and Clayton rendered April 29, 1983, and signed June 8, 1983; State rendered May 27, 1983, and signed May 31, 1983; and Talbot rendered June 24, 1983, and signed August 4, 1983. On appeal plaintiff has briefed only the issue of prescription. Therefore, in accordance with Uniform Rules-Courts of Appeal, Rule 2-12.4, this court considers all other issues to have been abandoned. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

Plaintiff contends that the trial court erred in sustaining the exceptions of prescription asserting that the prescriptive period for the tort of false imprisonment does not commence to run until the imprisonment ceases. Plaintiff reasons that since he was not released from the State’s custody until October 2, 1981, his suit for false imprisonment was timely instituted on September 30, 1982.

In the case sub judice, the trial court maintained exceptions of prescription and no cause of action as to Talbot, Martel-lo, Clayton and the State. Under LSA-C. C.P. art. 934, either objection is a ground for dismissing plaintiffs suit. Although plaintiff appealed the judgment sustaining both the exceptions of prescription and no cause of action, he concedes in brief that the trial court’s judgments sustaining the exceptions of no cause of action are proper. We agree with appellant that the trial judge was correct in sustaining the exceptions of no cause of action and any arguments remaining as to whether the actions were prescribed are now moot.

On appeal, appellant asserts for the first time that Talbot’s liability insurer is liable for Talbot’s alleged tortious conduct. Appellant concedes in brief that he has no cause of action against the parties named as defendants in the suit at the time that judgments were rendered therein and admits that the question of prescription would be moot, except that subsequent to the appeal he amended his petition to name as an additional defendant the liability insurer of Aubert Talbot, District Attorney of the Twenty-Third Judicial District. Appellant reasons that since privilege and immunity are personal defenses, Talbot’s insurer is precluded from asserting such grounds to defeat the suit for false imprisonment. Appellant further reasons that because a cause of action exists as to Talbot’s liability insurer and because such action was filed within one year of the date of his release from custody, he should be given an opportunity to recover damages from the insurer. In essence, appellant is contending that even though there is no cause of action against Talbot, prescription has not run on his claim against Talbot’s insurer. However, the record is devoid of any pleading (filed before or after rendition of judgment of the trial court) asserting a claim for damages against the insurer in the instant proceeding. Therefore, the issue of the liability of Talbot’s liability insurer to Blanton is not before the Court. See Edwins v. Lilly, 422 So.2d 1217 (La.App. 1st Cir.1982), writs denied, 426 So.2d 178, 180 (La.1983).

For the above and foregoing reasons, the judgments of the trial court dismissing Martello, Clayton, Talbot and the State as parties defendants are affirmed at appellant’s costs.

AFFIRMED.

      . Talbot also filed an exception of failure to comply with LSA-C.C.P. art. 860. Harris did not appeal or file any pleadings. The actual exceptions filed by the State are not in the record before us.

      . Oral reasons for judgment were transcribed for the Martello, Clayton and State exceptions, but were not for the Talbot exceptions.

      . We note that this is not false imprisonment because Blanton was confined by an apparently legal court order. See O’Connor v. Hammond Police Department, 439 So.2d 558 (La.App. 1st Cir.1983).


text:
    LAUREL LEA SHOPPING CENTER v. Jesse Joe PARKER, et al.
    No. 83 CA 1113.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Charest Thibaut, III, Baton Rouge, for plaintiff-appellant Laurel Lea Shopping Center.
    Paul S. West, Baton Rouge, for defendants-appellees Jesse Joe Parker, et al.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This appeal is from a judgment of the trial court which dismissed Laurel Lea Shopping Center’s (Laurel Lea) rule to evict Micro Mall, Inc. (Micro Mall) for an alleged breach of their lease agreement.

Laurel Lea leased to Micro Mall a portion of Laurel Lea Shopping Center located at 8821 Highland Road, Baton Rouge, Louisiana. The monthly rental was set at $1,200.00, payable on or before the first day of each month.

On February 1, 1983, Micro Mall tendered a check in the amount of $933.40 along with a paid invoice from Modern Electric Company in the amount of $266.40. This invoice represented the cost of labor and material to replace six ballasts in the lighting system as requested by Micro Mall.

Laurel Lea subsequently filed suit for past due rent, to rescind the lease and to evict alleging the lease agreement was breached as a result of Micro Mali’s failure to timely pay the rent due for February. Laurel Lea had originally named only Jesse Joe Parker and Carl Stevenson, owners of Micro Mall, as defendants, however, by amending petition, Micro Mall was made an additional defendant, and the individual defendants were dismissed by summary judgment.

Laurel Lea alleges the trial court erred in allowing Micro Mall to deduct the cost of replacing the six ballasts from the February rent. Specifically, Laurel Lea argues that the repairs were not “indispensable” or “necessary” repairs within the meaning of La.C.C. art. 2694.

The essence of the contract of lease is the enjoyment of a thing in exchange for a price. La.C.C. art. 2669. The lessee is bound to use the thing as a good administrator, for the intended use, and to pay the rent on the agreed terms. La.C.C. art. 2710. The lessee may be expelled from the property by failing to pay the rent when due. La.C.C. art. 2712. However, La.C.C. art. 2694 provides an exception to the general rule that the lessee may be evicted for failure to timely pay the full amount of the rent as stipulated by the lease. That article allows a lessee to repair at the lessor’s expense those things which the lessor is required to repair, and to deduct the cost of those repairs from the rent due. It provides in part as follows:

If the lessor do not make the necessary repairs in the manner required ... the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.” (emphasis added).

Shell v. Banks, 8 Rob. 168 (1844) continues to be the leading judicial interpretation of La.C.C. art. 2694. See also Lake Forest, Inc. v. Katz & Besthoff, 391 So.2d 1286 (La.App. 4th Cir.1980). In that case the Louisiana Supreme Court set out three prerequisites to the lessee’s use of La.C.C. art. 2694. First, the lessee must call upon the lessor to make the repairs and thereby put the latter in default of his obligation to repair. Second, the lessee must show the repairs are indispensable. And finally, the lessee must, in fact, make the necessary repairs neglected by the defaulting lessor, and prove that the price paid for making the repairs is just and reasonable.

At the hearing, there was testimony from both parties explaining the arrangement of the flourescent lights in the mall and how the non-operating lights affected Micro Mali’s business operations. Carl Stevenson, part owner of Micro Mall, testified that the building is forty feet wide and one hundred feet long with three rows of flour-eseent lights running the length of the building and one row across the front. Mr. Stevenson testified that six of the twenty-eight lights were not functioning and that the lights that were out were located mainly in the center row over the aisle.

V.J. Gianelloni, president of Laurel Lea, also testified that the non-operating lights were in the center row over the walkway.

'Jesse Joe Parker, part owner of Micro Mall, and Mr. Stevenson gave testimony concerning how the malfunctioning lighting system affected their business operations. Mr. Parker, after noting that Micro Mall retailed antiques, testified that due to the lights being out, the rear of the building which was used for work and storage was almost unusable and that the front area was dimmed to such an extent that the other antique sellers in the mall were complaining. Mr. Stevenson testified that the business operations were affected “to the extent that you couldn’t see. The public doesn’t like it if you are poorly lit, they can’t see the merchandise, they can’t see the prices on the merchandise.” Additionally, the problem occurred during the Christmas season when the lessees expected to do more business than any other time during the year.

After reviewing the evidence and testimony presented at trial, we find that trial judge’s factual finding that these repairs were “indispensable” repairs within the meaning of La.C.C. art. 2694 was not manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Laurel Lea alleges the trial court erred in finding that it “neglected” to make the repairs in accordance with La.C.C. . art. 2694.

There is no evidence in the record that Laurel Lea refused to make the repairs. However, the trial court found that Laurel Lea did “neglect” to make these necessary repairs. It is uncontested that Mr. Parker informed Mr. Gianelloni of the electrical problems on the premises. Mr. Gianelloni testified that Mr. Parker called him approximately three times concerning the electrical problems. He stated that he attempted to contact Mr. Buck Langlois, his electrical contractor, a number of times to request that he investigate the problems. Finally, Mr. Gianelloni authorized Mr. Stevenson to use his own electrician since Mr. Langlois never showed up. Mr. Gianelloni stated that he requested Mr. Stevenson to obtain an estimate for the repairs and then to call him for his authorization. He acknowledged the three calls he received from Mr. Parker were over a span of two to three weeks.

Mr. Langlois testified that he went to Micro Mall the same day he was contacted by Mr. Gianelloni. Mr. Langlois inspected the lights and informed a representative of Micro Mall that he would be back to fix the lights. He then informed Mr. Gianelloni that he was snowed under with other jobs, but that he would get to it as soon as possible. Mr. Langlois stated it was over three weeks before he got back in touch with Mr. Gianelloni.

Carl Stevenson testified that he recalled a personal conversation at Micro Mall with Mr. Gianelloni, but no telephone conversations. He stated that Mr. Gianelloni had never asked him to obtain an estimate nor was he asked to get back to Mr. Gianelloni. Mr. Stevenson testified that he was never advised that Mr. Gianelloni’s electrician, Mr. Langlois would come and inspect the problem and that Mr. Gianelloni was of the opinion that it was Micro Mall’s responsibility, as a tenant under the terms of the lease, to make the repairs. Mr. Stevenson testified that the lights continued to go out one by one over a period of two months or more prior to his conversation with Mr. Gianelloni and that another month went by before he had the six ballasts replaced.

Regardless of how Mr. Gianelloni was contacted, he had at least one month to replace the six ballasts. Considering the fact that the repairs only took three hours, we conclude the trial court was not manifestly erroneous in its factual finding that Laurel Lea “neglected” to make these necessary repairs. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

For the foregoing reasons the judgment of the trial court is affirmed. All costs are to be borne by Laurel Lea.

AFFIRMED.


text:
    The LOUISIANA DEPARTMENT OF CORRECTIONS v. ADMINISTRATOR, LOUISIANA OFFICE OF EMPLOYMENT SECURITY and Ann P. Simpson.
    No. 83 CA 1115.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    James D. Caldwell, Jonesboro, and Ann Metrailer, Baton Rouge, for plaintiff-appellant The Louisiana Dept, of Corrections.

      James A. McGraw, Baton Rouge, for defendants-appellees Administrator, Louisiana Office of Employment Sec. and Ann P. Simpson.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is an appeal from a district court judgment affirming an administrative determination by the Office of Employment Security of the Department of Labor (OES) that an employee was entitled to unemployment compensation benefits because she resigned her position for good cause when she was changed from eight-hour work shifts to twelve-hour shifts.

FACTS

Ann P. Simpson resigned her position as an L.S.P. Sergeant with the Department of Corrections (DOC) effective April 23, 1981. She filed a claim for unemployment compensation benefits on May 3,1981. As part of this claim, Simpson gave her reasons for leaving as follows:

The hours are from 5 a.m. to 5 p.m. (sic) which meant I would have to leave home at 3:05, as soon as my two boys aged 7 and 9 got home from school and before my just made teenage daughter got home from school. 16 hours of paying a babysitter, 4 hours on the road (driving) and 12 hours on the tower is too much for any mother of young children to handle. There would be no one to make sure their homework was done, baths were taken, supper was fixed. I would not be home to get them dressed for school or ever fix breakfast with these hours. Even if they had an 8 hour job, we only had one automobile & they would not have given my partner a daytime or an 8 hour job. We asked more than once. I have a child 7 years old with a speech problem and a behavior problem. Leaving him with another person for 16 hours a day would destroy all we have accomplished with him in the past year.... Including 12 hrs. working, 4 hours traveling & the little time left for sleeping there would be no time for cooking or any housekeeping.

DOC resisted this claim. On May 19, 1981, OES ruled that Simpson resigned for good cause and that she was entitled to benefits. La.R.S. 23:1600, 1601 and 1624.

On May 29, 1981, DOC took an appeal to the Appeal Tribunal of OES. La.R.S. 23:1629. On June 11, 1981, the appeals referee affirmed the OES ruling with the following factual and legal findings:

The claimant worked for the above named employer from April 19, 1978 until April 21, 1980 (sic). She worked as an L.S.P. Sergeant, working eight hour shifts, four days a week. For her services she received $1,138.00 a month, plus $100.00 a month in premium pay. The claimant resigned from her employment effective April 23, 1981, because she did not like the night 12 hour shift because of her children.
The employer was undergoing a change from 8 hour shifts to 12 hour shifts. The claimant worked at the main prison and was scheduled to change June 1981. However, Col. Wall requested that the change be made effective May 8, 1981. Col. Wall also advised there were some 8 hour jobs left and requests for transfers were to be submitted April 29th. The claimant could have submitted a request for a transfer to an 8 hour job or she could have requested a transfer to a day shift.
The facts, evidence and testimony in this case indicate the claimant could not work the new working hours as established by the employer. Therefore, it is concluded the claimant had good cause connected with the employment for leaving the employment.

On June 22, 1981, DOC appealed to the OES Board of Review. La.R.S. 23:1630. On September 4, 1981, the Board of Review, in a 2-1 decision, affirmed the ruling of the appeal referee. The majority of the Board of Review made the following factual and legal rulings:

After carefully reviewing all the testimony and evidence in this case, the majority of the Board of Review finds that the claimant’s separation from this employment was brought about because the employer was making changes in the employee’s working hours.
The majority further finds that the claimant’s hours were changed from eight-hour shifts to twelve-hour shifts.
The Board of Review and the Courts of Louisiana have consistently held that if the employer violates the hiring agreement, or makes substantial changes in the working agreement, and the employee leaves for that reason, then his leaving is for good cause connected with the employment. In the case at hand the majority finds that the employer did, in fact, change the employee’s working agreement from an eight-hour shift to a twelve-hour shift.

The dissenter assigned the following reasons:

The employer was changing from eight-hour to twelve-hour shifts; however, there were some eight-hour jobs left, and requests for transfer were to be submitted April 29. The claimant could have made a request for a transfer to an eight-hour job or she could have requested a transfer to a day shift.
The writer believes the claimant did not exercise all the opportunities that were available to her by not requesting an eight-hour job or a transfer to a day shift. The claimant had been working eight-hour shifts previous to the proposed change, so the writer does not believe the claimant has made a serious effort to protect her employment and should be disqualified for benefits under R.S. 23:1601(1).

This suit was filed in district court on September 17, 1981. La.R.S. 23:1634. On May 27, 1983, the district judge affirmed the ruling of the Board of Review with the following reasons:

She had a good period of work on an eight-hour shift, they changed the shifts to twelve hours and because of her situation at home, and in the opinion of the Court it amounts to a substantial change in the job, and because of that she resigned. It’s, uh, not clear in the record, in this Court’s opinion, as to whether she was told she could have her same job, that’s certainly not clear. There’s something in the record to the effect that eight-hour shifts were still available and she didn’t apply. How many were available, how many applicants there were is, uh, is not in the record. The record could be much clearer on that point and if in fact there was an eight-hour shift available to her that she could of worked on and that was clear in the record I would say yes, she left her employment because of what’s happening at home.

This devolutive appeal followed.

GOOD CAUSE FOR RESIGNATION

Good cause connected with a person’s employment, as defined in La.R.S. 23:1601, means cause connected with working conditions, ability of the employee to continue the employment, availability of transportation to and from work and other factors which affect the employee’s ability or right to continue work or which affect the benefits he may receive from his employer either upon continuation of work or retirement. McGraw v. Director of Postal Data Center, 319 So.2d 797 (La.App. 1st Cir.1975). It is good cause connected with employment for an employee to quit his job when the work becomes unsuitable due to unanticipated working conditions. Boudreaux v. Louisiana Board of Review, Department of Employment Security, 374 So.2d 1182 (La.1979); Hurst v. State, Division of Administration, 394 So.2d 1279 (La.App. 1st Cir.1981). Personal reasons for resigning employment are not good cause connected with employment. Pegues v. Office of Employment Security of State of Louisiana, 430 So.2d 375 (La.App. 3rd Cir.1983). A change in an employee’s shift work may constitute good cause to resign his employment. McDonald v. Lockwood, 424 So.2d 356 (La.App. 2nd Cir.1982). The findings of fact of the Board of Review are conclusive, if supported by sufficient evidence and in the absence of fraud, and the jurisdiction of this court is confined to questions of law. La.R.S. 23:1634.

The majority of the Board of Review found as a fact that Simpson’s shift hours were changed from eight to twelve. Simpson’s statement to OES shows that this change in working requirements would substantially and adversely affect her home life with her family. These facts establish good cause for her resignation.

Although DOC proved that some eight-hour shifts were open and that applications were being accepted for such shift work, the record does not demonstrate that Simpson would have been assigned to such a shift. We agree with the district court judge that, in the absence of a showing that Simpson would have been given an eight-hour shift upon her application for such, DOC has not successfully defended against her claim. Simpson was not required to do a vain and useless thing to preserve her right to unemployment compensation benefits. The burden was on DOC to demonstrate that Simpson would have been kept on an eight-hour shift had she applied for such.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. No party to this litigation is legally responsible for its costs, and they must be absorbed by the clerk of this court and the clerk and sheriff of the trial court. Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983).

AFFIRMED.


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    Joseph R. BOURQUE v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83 CA 1116.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Larry Dupuis, Edwards, Stefanski & Barousse, Crowley, for appellant.
    Anthony J. Bonfanti, Staff Atty., Dept, of Transportation & Development, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Joseph R. Bourque was terminated from his employment with the Louisiana Department of Transportation and Development (DOTD) for dumping a load of shell on the property of a landowner in violation of DOTD rules. He appealed to the State Civil Service Commission, which heard the matter through a referee, and affirmed the dismissal. Bourque properly perfected an appeal to this court. We affirm the dismissal.

The facts generally are uncontested. Bo-urque, while employed by the DOTD as a maintenance man and janitor, picked up a load of shell belonging to the DOTD in a DOTD dump truck, drove the load of shell onto the property of one Donald J. Deville near Opelousas, and dumped the shell. The incident happened on December 10, 1982. Some two years earlier, the DOTD had widened a ditch bordering the highway in front of Deville’s property. Bourque, who was then employed by the DOTD as a dump truck driver, persuaded Deville to permit the fill in the form of earth to be dumped deep within Deville’s land. To dump the fill, DOTD’s truck traversed a private road on Deville’s land, and, unfortunately, caused deep ruts to be formed in the road. Deville complained to Bourque, who offered to dump a load of DOTD shell to fill in the ruts. Bourque claims his supervisor at the time, Walter J. Devillier, gave his consent to dump the shell. However, nothing happened for two years. By that time, Devillier had retired as supervisor, and Bourque was under a new supervisor, Joe Bertrand. It was while Bertrand was supervisor that Bourque dumped the load of shell without Bertrand’s authorization and in violation of DOTD rules.

It was agreed by both the appointing authority and Bourque that the hearing of the Civil Service Commission would be supplemented by securing the deposition of the former supervisor, Devillier. The deposition is not in the record, nor does the record afford any explanation of why the deposition was not filed. Both the DOTD and Bourque blame each other for failure of the record to include the deposition, if it was ever indeed taken.

In general, Bourque’s sole defense is that he dumped the shell on Deville’s property to remove the ruts created by the DOTD’s tracks some two years earlier, and with the consent of his former supervisor, Devillier. It appears clear that DOTD rales forbade dumping DOTD shell on private property, the sole exceptions, if they be so called, being along shoulders and at driveway entrances, and that DOTD rules further forbade anyone other than a dump truck operator to operate a dump truck belonging to the DOTD. Indeed, Bo-urque’s main defense is that he claims he did not know he was doing anything wrong.

Although under Article X, Section 8 of the La. Const, of 1974, the appointing authority bears the burden of proof in a disciplinary action before a Civil Service Commission, it is clear that the appointing authority, the DOTD, has borne the burden, as Bourque virtually concedes he violated DOTD rules. Bourque’s motives, and whether or not he acted with the consent of his former supervisor, Devillier, allegedly given some two years before the shell was in fact dumped, are irrelevant. Any consent that Devillier may have given had lost authority by the passage of time, Devillier’s retirement, the appointment of a new supervisor, and Bourque’s change of job. Even if ignorance of DOTD rules were an excuse, it appears any DOTD employee should know he was not to drive a dump truck when he was not employed to do so, pick up shell belonging to the DOTD, and in effect give DOTD property to a private individual. In fact, Bourque did not pick up the shell until the supervisor, Bertrand, had gone home for the day. Thus, even if intent were an element, it appears the facts indicate Bourque knew he was acting wrongfully. The receiving of the deposition of Devillier would not change the picture, as any authorization that Devillier may have given Bourque we find had expired.

The action of the State Civil Service Com- , mission is affirmed, at appellant’s cost.

AFFIRMED.


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    Hilton J. MICHEL, Jr. v. Sally Kay Pierce MICHEL.
    No. 83 CA 1138.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Sidney C. Sundbery, Duval, Funderburk, Sundbery & Lovell, Houma, for plaintiff and appellant.
    Edward J. Gaidry, Gaidry & LaRussa, Houma, for defendant and appellee.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Plaintiff, Hilton J. Michel, Jr., appeals the trial court award of child support in the amount of One Thousand and no/100 ($1,000.00) Dollars per month per child.

On March 10, 1983, plaintiff filed for divorce asserting that he and the defendant had lived separate and apart for over one year. He further asserted his right to joint custody and agreed to pay One Thousand and no/100 ($1,000.00) Dollars per month per child for any month in which the defendant had custody of the minor children. After defendant answered, plaintiff amended his petition to assert his willingness to pay child support in such amount as the court would fix. Interrogatories and requests for production of documents were then filed by both parties; each indicating an unwillingness to submit the information requested. Defendant then answered plaintiff’s amended petition asserting that joint custody was not in the best interest of the children and that child support should not be for a sum less than Three Thousand and no/100 ($3,000.00) Dollars per month.

At trial, plaintiff was found to have established sufficient grounds for living separate and apart for over one year. Accordingly, he was granted an absolute divorce. Alimony was not at issue. The trial court further found that the plan for joint custody was in the best interest of the children and found that the children would be with their father approximately thirty-five (35%) percent of the time. The only contested issue was the amount of child support to be awarded. Citing plaintiff’s assertion of his ability to pay any reasonable amount of child support set by the court, the court found that plaintiff need not answer certain interrogatories propounded by defendant.

Plaintiff assigns as error the trial court’s award of One Thousand and no/100 ($1,000.00) Dollars per month per child for support plus all medical and dental expenses incurred by the two minor children. Specifically, he asserts that the trial court erred in allocating for child support: (1) two-thirds (⅜) of all household expenses, (2) maid service as an expense, (3) a sum for automobile replacement, (4) a vacation expense, and (5) a sum for miscellaneous expenses, gifts, and entertainment expenses. Defendant answered plaintiff’s appeal, asserting that: (1) she be awarded attorney’s fees for plaintiff’s frivolous appeal and (2) the trial court erred in not requiring plaintiff to answer certain interrogatories propounded to him.

It is well settled that both parents have an obligation to support their children. LSA-C.C. art. 227. The degree of support is determined by the needs of the child as well as the circumstances of those obligated to pay it. Stepp v. Stepp, 442 So.2d 1327 (La.App. 3rd Cir.1983); Fouquet v. Fouquet, 442 So.2d 787 (La.App. 5th Cir.1983); Garcia v. Garcia, 438 So.2d 256 (La.App. 4th Cir.1983); and Flynn v. Flynn, 434 So.2d 1161 (La.App. 1st Cir.1983). Moreover, such support should maintain the children in the same status as if their parents were not separated or divorced. Watermeier v. Watermeier, 435 So.2d 520 (La.App. 5th Cir.1983). Further, the trial court is vested with wide discretion in fixing child support based upon the particular facts and circumstances therein, the exercise of which will not be disturbed on appeal absent a clear abuse of that discretion. Casselmann v. Zaunbrecher, 430 So.2d 293 (La.App. 3rd Cir.1983); Goux v. Goux, 408 So.2d 30 (La.App. 3rd Cir.1981); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir.1975); Fakouri v. Perkins, 322 So.2d 401 (La.App. 3rd Cir.1975).

In the matter sub judice, the trial court found as a matter of fact that the children had enjoyed a high standard of living prior to their parents’ divorce. It further found that the defendant had proved the children’s expenses to be Two Thousand Seven Hundred Fourteen and 84/100 ($2,714.84) Dollars per month. We find that plaintiff failed to adduce any substantive evidence of contrary facts and/or figures which rebutted defendant’s evidence as to: (1) allocation of two-thirds (%) of all household expenses to the children; (2) funds for maid service; (3) vacation expense; and, (4) automobile replacement. As such, the trial court was justified in permitting- such expenses. However, we find the trial court did err in accepting a sum for miscellaneous expenses.

In considering the claim of Two Hundred and no/100 ($200.00) Dollars per month for miscellaneous expenses, defendant’s testimony reflects that such an amount was an estimate of expenses incurred. The defendant failed to prove that such expenses were actually incurred. While we note that an exact itemization of the child’s needs is not required for an award to be given, Garcia and Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir. 1976), this court finds that the award given herein for miscellaneous expenses is inappropriate. Defendant listed some forty-two (42) items of individual monthly expenses for the two minor children residing at home, which among other things included $180.00 for clothing, accessories, shoes, stockings, underclothes, etc.; $15.00 for school supplies; $35.11 for school books, registration fees, art fees, etc.; $21.00 for cosmetic and drug store, sun care, etc.; $22.66 for hair cuts and beauty parlor; $60.00 for allowances; $3.00 for appliance repair; $26.09 for club dues; $5.50 for newspaper and magazine, T.Y. Guide, Glamour, Teen; $4.16 for pets (food and veterinarian); $83.33 for entertainment, monies, tickets to shows (circus), meals out, etc.; $140.26 for gifts including Christmas; $14.00 for dancing lessons and expenses; and, $120.00 for vacation expense, to set forth only a few of the items listed. Then, defendant set forth and the trial judge allowed $200.00 per month child support for “Miscellaneous Expenses and Miscellaneous cash: (Day Camp, swimming lessons, birthday parties, easter, film and pictures, stamps, children’s books etc., Highlights magazine for Christy, prom, graduation expenses).” Considering all the previous items for which child support had previously been awarded, the trial court erred in the award for miscellaneous expenses, said award being at least a partial duplication of other items specifically listed such as allowances, cosmetic and drug store, etc.

Defendant appealed contending that an award of attorney’s fees was justified, plaintiff’s appeal being frivolous and without merit. Further, she complains that the trial court erred in failing to require the plaintiff to answer certain interrogatories propounded to him.

Having found hereinabove that the trial court erred in granting an award for miscellaneous expenses in the award of child support, defendant’s first assignment of error is without merit. Accordingly, attorney’s fees are inappropriate. As to defendant’s second assignment of error, she failed to brief it for this court. Therefore, this court considers such assignment of error to have been abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

For the above and foregoing reasons, the judgment of the trial court is amended to reflect a reduction in child support of One Hundred ($100.00) Dollars per month per child. In all other respects, the judgment is affirmed. The costs of this appeal are to be equally assessed between the parties.

AMENDED AND AFFIRMED.


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    Joseph DONCHESS v. DHHR, OFFICE OF MANAGEMENT AND FINANCE.
    No. 83 CA 1140.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Remy Chaisson, and Jeffrey M. Bou-dreaux, Thibodaux, for Dorothy J. Kyle.
    Charles F. Castille, and Jean G. Ray, Baton Rouge, for DHHR.
    Mary E. Howell, New Orleans, for Joseph Donchess.
    Robert R. Boland, Jr., Baton Rouge, for Herbert L. Sumrall.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This appeal is from a decision of the State Civil Service Commission (Commission) that rescinded the promotion of Dorothy Kyle from an Attorney Y position.

On October 11, 1982, Mrs. Dorothy J. Kyle was promoted to the position of Section Chief of the Office of Family Security/Office of Licensing and Regulation (OFS/OLR), Legal Section.

On October 26, 1982, Joseph Donchess, a candidate for the promotion received by Mrs. Kyle, appealed the promotion of Mrs. Kyle on the basis that the appointing authority had abused its discretion, had acted capriciously, arbitrarily, and irrationally, and had violated Art. 10 Sec. 7 of the Louisiana Constitution in making the promotion. Mr. Donchess also appealed on the basis that the action was discriminatory in that Mrs. Kyle had used political connections and influence to obtain the promotion. Mr. Donchess further alleged in his appeal application that Mrs. Kyle did not possess the minimum qualifications for the Attorney V classification.

A public hearing was held by the Civil Service Commission on March 2, 1983. Mrs. Kyle was never made a party to this proceeding. In fact, she was subpoenaed as a witness and then sequestered from the hearing rendering her unable to participate in any way. The Commission, while finding no discrimination or other ill practices by the appointing authority, nevertheless, proceeded to render a decision which demoted Mrs. Kyle on the grounds that she did not possess the minimum qualifications for an Attorney V classification. The decision specifically provided, “... The promotion and pay change effective November 11, 1982 for Dorothy J. Kyle is therefore rescinded as if it had never been granted.”

Mrs. Kyle subsequently appealed this decision by the Commission and also applied to this court for a stay of execution. On July 12, 1983, this court ordered that a writ of mandamus be issued staying that portion of the decision of the Commission which might require Mrs. Kyle to reimburse the agency for the pay change effective November 11, 1982, until further order of the court.

Appellant filed in this court contemporaneously with her appeal the peremptory exception of nonjoinder of an indispensable party.

A review of the record reveals the fact that the Commission did not follow its own prescribed procedures for demoting a Civil Service employee. The Commission proceeded to rescind Mrs. Kyle’s promotion even though she was not made a party to a hearing that originated as a discrimination action initiated by Mr. Donchess. This assumption of power not only violates procedural due process but also the Commission’s own rules.

A review of the Civil Service Rules reveals that the Commission had two options. The Commission, under Ch. 16 of the Civil Service Rules, could have conducted a preliminary investigation to ascertain whether Mrs. Kyle was qualified for an Attorney V classification. Mrs. Kyle would have been made a respondent and given the opportunity to defend her position at a public hearing. The Commission also had the option to remand the issue of Mrs. Kyle’s qualifications to the appointing authority. The appointing authority could then, under Ch. 12 of the Civil Service Rules, demote Mrs. Kyle, but only for cause. Mrs. Kyle would be provided written detailed reasons for the action taken along with written notice of her right to appeal the action to the Commission within 30 days. Under either of the above alternatives Mrs. Kyle would be a party to the proceedings and given the opportunity to defend. Accordingly, we reverse the decision of the Commission that retroactively rescinded Mrs. Kyle’s promotion without her being made a party to the proceedings in accordance with the Civil Service Rules.

For the foregoing reasons, the decision of the Commission is reversed. All costs of this appeal are to be borne by the Commission.

REVERSED.

      . We specifically note that although appellant was not a party to the original hearing, this case is properly before us through appellant’s use of La.C.C.P. art. 2086. This article provides that "a person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken."