text:
    Mrs. Josephine Elva McCrourry, wife of Sanford FOSTER v. Sanford FOSTER.
    No. 7380.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      Richard I. Farmer, New Orleans, for plaintiff-appellant.
    Anthony J. Vesich, Jr. and George H. Jones, New Orleans, for defendant-appel-lee.
    Before LEMMON, MORIAL and BEER, JJ.
   LEMMON, Judge.

In this domestic relations matter Mrs. Josephine Foster has appealed from a judgment which, although granting her a separation, denied her demand for restitution of paraphernal property in the amount of $2,400.00.

Mrs. Foster owned an automobile when she and her husband were married in December, 1970. The following month she entered DePaul Hospital, where she was treated for schizophrenia through June, 1971.

In March, 1971, while Mrs. Foster was in the hospital, the car was sold, and the proceeds of $2,400.00 were deposited into their joint bank checking account.

When Mrs. Foster was released from DePaul, the couple resumed living together until Mrs. Foster was again hospitalized in another institution in September, 1973. After several severe disagreements, they separated, and this suit was filed in July, 1974.

The bank statement for the joint account transactions in 1971 showed numerous deposits and withdrawals, including one in the amount of $1,200.00 on April 26 that Mrs. Foster asserted her husband used to pay a gambling debt, and the balance was seldom below $1,000.00 and often in excess of $2,000.00.

The trial judge denied the wife’s claim for restitution on the basis that the funds from the sale of her separate property had been comingled in the community bank account.

When separate property (or the proceeds from the sale of separate property) becomes comingled with community funds to the extent that the separate funds are no longer capable of identification, the spouse who owned the separate property simply loses the claim to ownership of specific property bought with the comingled funds (because of ownership tracing problems). The spouse is nevertheless entitled to restitution of the separate property at the time of dissolution of the community. Furthermore, the wife, even during the marriage, is entitled to restitution of her paraphernal effects which she can prove were either delivered to her husband or delivered for use to the community. Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1957); C.C. art. 2391.

This is not a suit to have the checking account, or any sum therein or property purchased therewith, declared community property. Rather, this is a claim by the wife for restitution of para-phernal effects. The wife need only prove that the proceeds from the sale of her separate property were delivered to her husband and used for his benefit or the benefit of the community. Slater v. Culpepper, supra; Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968). She need not prove that the value of the community has been enhanced by the expenditure of these funds.

Under Louisiana’s community property system, the wife has limited power of management over community assets (and corresponding limited liability for community management powers), she in phernal property (or proceeds therefrom) is delivered to her husband (who does have community management powers), she in effect becomes a creditor and her claim in effect is a community debt. Downs v. Morrison, 13 La.Ann. 379 (1858). Moreover, the husband is individually liable for this community debt, and when community assets are insufficient to satisfy the claim, the wife is entitled to restitution from the husband’s separate property. Succ. of McCloskey, 144 La. 438 80 So. 650 (1919). See generally Huie, Separate Claims to Reimbursement from Community Property in Louisiana, 27 Tul.L.Rev. 143, 147 (1953).

The wife is also entitled to legal interest from the date of dissolution of the community. Succ. of McCloskey, supra.

We conclude Mrs. Foster has proved her claim in this case.

Accordingly, the judgment of the trial court is reversed in part, and it is now ordered that there be judgment in favor of Josephine Foster and against Sanford Foster in the amount of $2,400.00, together with legal interest from July 26, 1974 until paid, and all costs of these proceedings, including the costs of this appeal.

REVERSED IN PART AND RENDERED.

      . All hospital costs were covered by hospitalization insurance, the premiums for which were paid with community funds.

      . C.C. art. 2391 provides:
      “The wife has, even during marriage, a right of action against her husband for the restitution of her paraphernal effects and their fruits, as above expressed.”

      . The McCloskey case was decided on the basis that the husband, as head and master, is liable for community debts. However, in Downs v. Morrison, supra, the wife who had accepted the sizeable community was allowed to recover only one-half of her claim for re-titution, on the basis that she was liable for one-half of the community debts. In the present case there was no acceptance of the community by the wife, nor apparently were there any community funds to satisfy her claim.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Venance P. LAMBERT, d/b/a V. P. Lambert & Company v. Christian C. BRUCKER and Mrs. Emma S. Brucker.
    No. 7378.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      See also, La.App., 323 So.2d 894.
    Satterlee & Mestayer, Robert J. A. Williams, New Orleans, for plaintiff-appellant.
    McGinity & McGinity, Richard J. Mc-Ginity, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

Plaintiff, a real estate broker, has appealed from a judgment which denied his claim for a broker’s commission.

On November 20, 1972 defendants executed a standard form listing agreement, employing plaintiff to sell their home situated on an 18-acre farm on the Mississippi River (including all furnishings and equipment) for $200,000.00. Plaintiff paid $400.00 as consideration for this one-month agreement, which also gave plaintiff the right to renew the contract upon additional payments. By payments under the contract and subsequent amendments, plaintiff maintained the agreement in effect through June 20, 1973.

On June 6, 1973 plaintiff secured a prospective purchaser who executed an option to purchase the property for $185,000.00. Defendants executed their acceptance of the option on the same day.

Also on the same day a section of the levee behind defendants’ home collapsed into the river, causing the threat of a serious levee break. Shortly thereafter the Board of Levee Commissions of the Orleans Levee District (Board) appropriated a servitude on defendants’ entire property for the purpose of building a levee setback and digging a borrow pit in connection with the construction. Eventually, defendants sold the property to Board.

The principal issue in this litigation involves plaintiff’s demand for a commission under the listing agreement on that sale. Resolution of this issue requires an understanding of the events and procedures which led up to the sale in question.

Immediately after the levee problem manifested itself, the U. S. Army, Corps of Engineers (Corps), designed a levee setback and investigated the property needs. On June 9 Edward Crabtree of the Corps’ land acquisition department contacted defendants about the probable need for their vacating the property and discussed their rights as property owners. In the meantime appraisers from the Corps began evaluating the properties over which servi-tudes would probably be required.

By June 11 the Corps determined that servitudes were required on portions of four parcels of property (including a portion of defendants’) for locating the levee setback, as well as a servitude on the remainder of defendants’ property for digging a borrow pit in connection with the levee construction. In accordance with standard procedure, the Corps communicated these needs to the Levee Board, who then became responsible to acquire the servitudes under the Board’s constitutional power of appropriation.

Defendants, the only owners to be physically dispossessed by the proposed construction, met the next day with Board representatives. Defendants were informed that while the Board could only pay them the assessed value of the property, the Corps would appraise the property and pay full market value to the Board, who in turn were required to pay defendants the entirety of these funds. Defendants were also advised that preliminary appraisal data indicated the Corps would pay in the range of $180,000.00 to $182,000.00 for the servitude on their property, but that the amount ultimately paid would not be determined until the Corps’ appraisal was completed, reviewed and approved.

On June 13 the Board adopted a resolution of appropriation and formally notified the property owners. At the meeting plaintiff gave the Board written notice of the listing agreement and communicated his contention he was entitled to a commission on any deal agreed to during the existence of the contract.

On June 19 plaintiff tendered a payment to defendants in exercise of his right of renewal of the listing agreement for another month. Plaintiff also notified defendants he was ready, willing and able to fulfill his obligations under the listing agreement and to handle all negotiations pertaining to the sale of the property. Defendants refused to accept the renewal payment, and plaintiff filed this suit.

After vacating the premises, defendants received no further communication from the Board or the Corps until after August 14. On that date the Corps notified the Board that the servitude value of defendants’ property had been appraised at $182,500.00. At a meeting the next day, the Board adopted a resolution to accept this sum as full reimbursement for the servitude. Concurrently, the chief engineer recommended that the Board take full title to defendants’ property, rather than the servitude which had previously been contemplated, in order that the Board could fence and control the 15-acre pit and avoid tort liability problems. In accordance with this recommendation, but without discussion with defendants, the Board adopted a resolution to acquire full title to defendants’ property for a sum not to exceed $185,000.00. (The Board acquired only a servitude on the other three properties.) Without any negotiations, defendants agreed to accept this amount, and an act of sale was eventually passed.

The trial court denied the claim for the commission, holding that the emergency intervention of the public authority rendered the contract impossible to perform, requiring its nullification. We agree.

The listing agreement provided for a commission “on the gross amount of any deal (agreement to sell or exchange) that may be negotiated during the existence of this contract . . . . ” When the public necessity arose, the Board immediately appropriated a servitude on the entire property and constructed a levee on part and a borrow pit on the remainder. Thus, the thing which was the “object of the obligation”—that is, the land and improvements—became effectively destroyed and was rendered unsalable, and the contract was extinguished. C.C. art. 2219.

After the appropriation there was no “deal” for sale or exchange which could be negotiated, since the property and improvements were 100% damaged. Only the amount of compensation for the servitude remained to be determined, and the “present market value” was eventually appraised at $182,500.00. At that point defendants theoretically could have kept title to the property and accepted that sum as compensation for the servitude and damages. However, the Board made an “interdepartmental decision”, without any discussion with defendants, to supply an additional $2,500.00 (for the Board’s own purposes) to make up the difference between the price the Corps was to reimburse the Board for the servitude and the price that defendants had indicated they would accept for title to the property. While plaintiff emphasizes in argument a statement by the Board’s chief engineer that the Board would not have paid $185,000.00 for the mere servitude, this interdepartmental decision came long after the property and improvements had been totally damaged by appropriation of the servitude, which was the only action originally contemplated by the Board. The fact that the Board used the formality of an act of sale to accomplish the incidental objective of avoiding tort liability did not serve to convert the original appropriation into a “deal” of sale as originally contemplated by the listing agreement. To determine otherwise would be to choose form over substance.

We conclude that no commission was due under the listing agreement, since all obligations under that contract became extinguished when the Board appropriated a servitude on the entire property for the levee and borrow pit.

The trial court also ordered the return of all cash and notes paid as consideration to acquire and extend the agreement, as well as the $400.00 check tendered on June 19, 1973 for extension of the contract. Defendants concede the fairness of this order, which in effect returns the parties to their status prior to the contract.

Defendants contest, however, that part of the judgment which awarded plaintiff $500.00, on a quantum meruit basis, for services performed in supplying the Corps’ appraisers with information and data to support the value of $185,000.00 which defendants had accepted in the option.

The record shows that defendants, immediately upon learning of the probable taking of their property, informed Crab-tree of the listing and option agreements, but specifically denied that plaintiff was to represent them in any manner in connection with the governmental “seizure” of the property, unless the listing or option contracts came into play. Moreover, when defendants later allowed the Corps’ appraisers on the property, they denied admission to plaintiff.

Admittedly, plaintiff did supply information and data to the Corps’ appraisers which possibly benefitted defendants. Nevertheless, Crabtree specifically testified that the field appraisers contacted several realtors in the area in connection with this appraisal (in addition to searching the public records), as they normally did in all appraisals, but that they consulted plaintiff only in his capacity as a realtor and that “our appraisers asked no more and received no more from Mr. Lambert as they ask or receive from any other realtor whether it be this job or any job.”

Plaintiff, had no express or implied contract to perform services on behalf of defendants in respect to the appraisal. Indeed, plaintiff normally supplied information to the appraisers as a courtesy, and there was not the slightest suggestion in the record' that the appraisal in this particular case was higher because of plaintiff’s services or would have been lower if the appraisers had relied only upon information from other realtors and research of the public records.

For these reasons, the judgment of the trial court is amended to delete the award of $500.00 for services on a quantum meruit basis. As amended, the judgment is affirmed. Costs of this appeal are assessed to plaintiff.

AMENDED AND AFFIRMED.

      . Plaintiff concedes that no commission is due on the appropriation of the servitude.

      . The part which plaintiff played in these evaluations will be discussed later in connection with another issue.

      .See La.Const.1921, Art. 16, §§ 5 and 6.

      . Crabtree testified that the appraisal of present mark value was not negotiable, although there are sometimes negotiations as to the price ultimately paid.

      . Admittedly, since defendants had agreed in the option to sell the property for $185,000.00 minus a commission, the appropriation (even at $182,500.00) was to their financial advantage. Nevertheless, the appropriation also extinguished the contract (making it impossible to perform) before any sale under the contract could take place, and the contract was plaintiff’s sole basis for a commission.


author: REDMANN, Judge.

text:
    Robert GALL v. INTERNATIONAL EXPORT PACKERS OF LOUISIANA INC. and Aetna Insurance Company.
    No. 7390.
    Court of Appeal of Louisiana. Fourth Circuit.
    April 13, 1976.

      Donald F. deBoisblanc, New Orleans, for plaintiff-appellant.
    Esmond Phelps, II, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his workmen’s compensation claim. The issue is whether his present back disability was caused by an earlier back strain at work. We are unable to say the trial judge erred in concluding it was not.

Plaintiff fairly proved that he had an accident at work on October 15, 1973. A fellow employer testified of seeing him “bent over, white as a sheet.” From work he was sent by defendant employer to a doctor who found muscle spasms that lasted two weeks (though plaintiff continued to work, on light duty). Plaintiff’s complaints at that time included numbness down the left leg. That first doctor, however, discharged plaintiff after four weeks, when plaintiff was experiencing no more pain except after six to eight hours of work.

Plaintiff’s employment with defendant terminated in March 1974 (for unrelated reasons). Plaintiff worked brief periods with other employers thereafter. He testifies that he suffered pain at work and even had to quit work because of pain. On July 22, 1974, he saw an orthopedist who then found objective symptoms and who in November 1974 (after plaintiff had an “acute exacerbation of pain” at work in September or October) diagnosed a ruptured intervertebral disc which disables plaintiff.

Perhaps a trial judge could have inferred that the back injury causing left leg numbness was more than muscle spasm; that the injury continued past November 1973 despite plaintiff’s discharge by the first doctor before all pain was gone; that the injury was obscured by plaintiff’s light duty until his discharge in March 1974; that the heavier-duty work thereafter was more than the injured back could tolerate and the injury thereupon manifested itself at first by pain and finally by the “acute exacerbation” which led to myelogram and disc diagnosis.

On the other hand, our trial judge— presumably considering, in addition to a basic credibility evaluation, the period of time after the first doctor’s discharge during which plaintiff did not see another doctor, the first doctor’s testimony that spinal muscle spasm (rather than disc disease) could have caused the left leg numbness, plaintiff’s own testimony that (prior to the accident) he engaged in street fights, and the intervening other employments — drew the not unreasonable inference that the October 1973 incident did not cause the October 1974 disability.

In the appellate courts, “reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Co., La.1973, 283 So.2d 716, 724.

Affirmed.


author: GLADNEY, Judge. PRICE, Judge.

text:
    PARKWAY DEVELOPMENT CORPORATION et al., Plaintiffs-Appellees, v. CITY OF SHREVEPORT et al., Defendants-Appellants.
    No. 12795.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    On Rehearing April 19, 1976.
    Writ Granted June 11, 1976.

      John Gallagher, Roland J. Achee, Shreveport, Neil Dixon and Charles C. Grubb, Shreveport, for the City of Shreveport, by Roland J. Achee and Charles C. Grubb, Shreveport.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for St. Louis Southwestern Railway Co., plaintiff-appellee.
    Cook, Clark, Egan, Yancey & King by Sidney B. Galloway, Shreveport, and John C. Krepak, for Parkway Development Corp., plaintiffs-appellees.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   GLADNEY, Judge.

This action was instituted on March 31, 1975 by St. Louis Southwestern Railway Company (hereafter, Railway), as the alleged possessor of certain immovable property; Parkway Development' Corporation (hereafter, Parkway), the lessee of the Railway; and John C. Krepak, an officer of Parkway. Named defendants were the City of Shreveport and the mayor of that city, L. Calhoun Allen, Jr. Plaintiffs seek an injunction and damages for alleged disturbance of their possession by the city of. Shreveport on March 22,1975.

After trial on the rule to show cause on the preliminary injunction, the trial court ordered the preliminary injunction issue enjoining and restraining defendants from disturbing the lawful and peaceful possession of plaintiffs of the property in dispute. Defendants perfected a devolutive appeal to this court.

The narrow legal issue presented is whether plaintiffs are entitled to injunctive relief under the provisions of LSA-C.C.P. art. 3663. The requisite proof of this preliminary injunction is possession of immovable property or a real right for more than one year prior to the disturbance, a disturbance of that possession, and the filing of a suit within one year of the disturbance. LSA-C.C.P. arts. 3655, 3663; Babington Children Trusts v. Eimer, 285 So.2d 792 (La.1973); Ward v. Standard Materials, Inc., 293 So.2d 885 (La.App., 1st Cir. 1974).

The evidence shows that in May of 1888 the City of Shreveport granted to the Railway’s ancestor in title the “right to occupy and use” the subject tract. The right of the Railway is characterized in the document making the grant as a “right of way and privileges”. We are not called upon here to determine the nature of the right in question beyond saying it is at least a servitude. Mitchel v. Board of Commissioners, 161 So.2d 384 (La.App., 4th Cir. 1964). Such a servitude is itself considered an immovable. LSA-C.C. art. 471. The Civil Code in article 3432 notes that such rights are themselves capable of a type of possession:

“Possession applies properly only to corporeal things, movable or immovable.
“The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi possession, and is exercised by the species of possession of which these rights are susceptible.”

In recognizing the distinction between these. two types of possession, the Code only establishes an analytical difference. It does not establish special rules applicable to quasi possession. See Yiannopoulos, Civil Law Property, Secs. 13, 92, 138 (1966); Planiol, Civil Law Treatise, Vol. 1, No. 2954, et seq.; Civil Law Translations, Aubry & Rau — Property, Vol. 2, Sec. 179 at pages 89-92. The real actions of the Code of Civil Procedure are designed to protect both possession and quasi possession. Louisiana Irrigation and Mill Company v. Pousson, 252 So.2d 151 (La. App., 3d Cir. 1971), affirmed at 262 La. 973, 265 So.2d 756 (1972). Since this servitude is “immovable property”, capable of quasi possession, no further classification is needed to afford the protection of the possessory action. LSA-C.C.P. arts. 3655, 3663.

The trial court found the Railway had been in actual, corporeal possession of this right within the year immediately preceding this action. The species of possession of which this property is susceptible is the “use and occupancy” of the subject tract. The testimony shows the Railway, without protest by any party, had placed track on the property, had constructed buildings or other structures on the property, had leased the land for storage purposes and other development purposes. These actions were all consistent with the grant of rights to the Railway by the City of Shreveport. We therefore conclude plaintiffs had actual possession of the property involved for much more than one year prior to defendant’s disturbance.

The only remaining question is whether this action was brought within one year of the disturbance of plaintiffs’ possession. We conclude it was. The evidence establishes that the first action defendants could consider a disturbance of the possession of the Railway was that of city police officers, at the direction of the mayor, in prohibiting the officer of Parkway Development from constructing a fence on the subject tract on March 22, 1975. All actions by defendants prior to that date were consistent with the rights of plaintiffs and with full recognition of those rights. This suit was filed on March 31, 1975 and was therefore timely.

For the reasons assigned, we find no error in the judgment appealed, and accordingly, it should be and is hereby affirmed at defendants-appellants’ cost.

Affirmed.

Before BOLIN, PRICE, MARVIN and SMITH, JJ., EN BANC.

ON REHEARING

PRICE, Judge.

We granted a rehearing in this matter on application of the City of Shreveport to consider the concern of the applicant that our original opinion definitively classified the contractual right emanating from the 1888 grant from the City to the railroad as a “servitude.” The City contends such a classification is contrary to the law and evidence and could prejudice its right to further litigate this isgue in future proceedings under a plea of res judicata.

As previously stated in our original opinion, it is unnecessary for us to make a final determination on the nature of the rights created under this grant for resolution of the narrow issues now before us. We intended to merely hold that plaintiffs had made a prima facie showing of the possession of a real right sufficient to entitle them to a preliminary injunction under La. C.C.P. Article 3663.

We have also considered the alternative argument of the City that in no event should the preliminary injunction have included the portion of the disputed property adjacent to the Civic Center referred to as a beautification area. The City contends it is admitted by plaintiffs the City has had physical possession of this part of the tract for the past eight years, We find any possession of this area by the City was under a written lease agreement from the railroad and such possession cannot be construed as adverse to that of the railroad or its sub-lessee, Parkway.

For these reasons, our former decree is reinstated.

HALL, J., recused.