author: EDWARDS, Judge.

text:
    James A. STANLEY, and Marie Ann Wright Stanley, wife of James A. Stanley v. ORKIN EXTERMINATING COMPANY, INC.
    No. 12037.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Mike J. Balen, Covington, for plaintiffs-appellants.
    Nathan T. Gisclair, Jr., New Orleans, for defendant-appellee Orkin.
    Howard R. Fussell, Covington, for third party defendant-appellee Madge Glasscock Owens.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Query: is a purchaser of immovable property, who agrees in a written purchase agreement to buy the property, subject to an unrecorded written lease, bound by the terms of the lease when he subsequently purchases the property without any mention of the lease in the act of sale? Such is the question presented for review by plaintiffs-landowners’ (James A. Stanley and Marie Ann Wright Stanley) appeal from an adverse judgment in an eviction proceeding against the tenant, Orkin Exterminating Company, Inc. Orkin answered the appeal, seeking an increase in the damages for wrongful seizure awarded by the trial court.

The record reveals the following pertinent facts. On May 4, 1970, Orkin and D. A. Faherty, Jr., d/b/a Faherty & Company, who was then the owner of the subject property on Collins Boulevard in Covington, Louisiana, entered into a written lease. The lease provided for fixed rental payments of $260 per month for an initial term of ten years, with two successive five year options to renew. The lease was not recorded.

Faherty subsequently sold the property to John D. Owens, Sr., who in turn sold the property to his mother, Mrs. Madge Glas-scock Owens. Both Owens and his mother orally acknowledged the Orkin lease and accepted the monthly rent payments from Orkin, who attorned to their rights as landlord.

In early 1976, Owens, as agent for his mother, began negotiations to sell the property. Plaintiff, James A. Stanley, who owned the adjoining property, was contacted and ultimately entered into a written purchase agreement to buy the Owens’ property. The purchase agreement provided, inter alia : that the purchase price was $27,500; that the sale was conditioned on Stanley obtaining the necessary financing; that the property was sold subject to a lease; and that the act of sale was to be passed on or before April 30, 1976. Stanley wrote the phrase “Note Lease Agreement to Orkin” on the line indicating that the sale was subject to a lease. Stanley also gave Mrs. Owens the sum of $400 as a deposit.

The testimony reveals that Stanley was unable to get a loan and that nothing further was done for several weeks. During this period, Owens on behalf of his mother tried unsuccessfully to sell the property to others. Owens later returned to Stanley, whereupon it was agreed that Mrs. Owens would finance the entire purchase price of the property. Mrs. Owens retained Stanley’s deposit, without protest, throughout the entire transaction.

An act of sale, conveying the property from Mrs. Owens to plaintiffs, was passed on July 6, 1976. No mention of the lease was contained in the act of sale. In fact, the testimony reflects that no mention was made at the time of the act of sale by any of the parties that the property was being sold subject to the lease.

Subsequent to the act of sale, Stanley notified Orkin that he wanted to renegotiate the lease and that the new monthly rental would be $450. No new lease was entered into, but Orkin paid Stanley $450 for three months and then reverted to the $260 per month rate.

On April 21, 1977, plaintiffs instituted this suit to evict Orkin and to recover allegedly past due rent, representing the difference between the $260 per month rent paid and $450. Plaintiffs also obtained a writ of sequestration on Orkin’s movable property located on the premises.

Orkin answered, contending that it was occupying the premises under a valid lease which had been assumed by plaintiffs; reconvened for the excess rent paid beyond the $260 per month lease provision, and for damages and attorney’s fees occasioned by the wrongful issuance of the writ of sequestration; and filed a third party demand against Mrs. Owens for damages, resulting, in the event of eviction, from the payment of rent in excess of $260 per month during the remainder of the term of the lease and the two options to renew.

The trial judge, relying on the express terms of the purchase agreement, the testimony of Stanley, Owens and Mrs. Owens, and the presumed intentions of the parties, found that Stanley had purchased the property subject to the existing lease. The trial court rendered judgment in favor of Orkin: dismissing plaintiff’s suit; dissolving the writ of sequestration; and awarding damages and attorney’s fees in the amount of $250. The third party demand against Mrs. Owens was dismissed.

Plaintiffs contend that the trial court’s decision is contrary to the laws of registry, i. e. the “Public Records Doctrine,” and must be reversed.

However, we find that the doctrine is not applicable under the instant factual situation, inasmuch as the basis for holding that plaintiffs are bound by the lease is plaintiffs’ contractual assumption of the obligations of the lease, rather than the lease’s recordation vel non. See LSA-C.C. art. 2019; Comment, 29 La.L.Rev. 101, 108 (1968).

Next, plaintiffs contend that the silence of the act of sale regarding the lease proves conclusively that the sale was not intended to be subject to the Orkin lease.

We reject this contention. The mere silence of an act of sale does not preclude proof of an obligation arising from a valid prior or contemporaneous agreement between the parties, e. g. the purchase agreement. Primeaux v. Bennett Homes, Inc., 339 So.2d 1251 (La.App. 1st Cir. 1976); Smith v. Succession of Johnson, 185 So.2d 603 (La.App. 1st Cir. 1966), writ denied, 249 La. 487, 187 So.2d 451 (1966); Segari v. Uchello, 44 So.2d 722 (La.App. Orl. Cir. 1950). Compare Hingle Brothers, Inc. v. Bonura, 248 So.2d 391 (La.App. 4th Cir. 1971).

Stanley agreed, in the purchase agreement, to buy the property subject to the lease. He testified that he knew Mrs. Owens intended to sell subject to the lease and acknowledged that he was given a copy of the lease at the signing of the purchase agreement. He now defends a sale free from the lease on the grounds that he only intended to honor a “legal” lease, meaning a recorded lease.

We do not find this argument persuasive. The apparent intent of the parties throughout this entire transaction was that the property was to be sold subject to the Orkin lease. We find this intention expressly stated in the purchase agreement and impliedly agreed to in the subsequent transactions between the parties. As such, this agreement, by Stanley, to assume the obligations of the lease and to purchase the property subject to the lease, was properly enforced. LSA-C.C. art. 2019. See LSA-C.C. arts. 1811, 1817, 1818 and 2683.

We find that the trial court’s factual determination, that the property was purchased subject to the lease, is correct.

Orkin answered this appeal, seeking an increase in the award for damages and attorney’s fees. We find that the trial court’s award is adequate in view of the “constructive” nature of the seizure. We find no abuse of discretion.

For the above reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Hardy W. HOWARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY.
    No. 12039.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Michael R. Connelly, Baton Rouge, of counsel for plaintiff-appellant Hardy W. Howard.
    Michael C. Barron, Baton Rouge, of counsel for defendant-appellee Louisiana Dept, of Public Safety.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff seeks a restricted driver’s license under LSA-R.S. 32:415.1. From a judgment dismissing his petition, plaintiff has appealed.

On January 24, 1973, plaintiff pleaded guilty to a DWI charge and his driver’s license was suspended for one year. Apparently, subsequent to the effective date of Act 618 of 1976, Regular Session, plaintiff’s driver’s license was again suspended for driving while under the influence of alcoholic beverages. In dismissing plaintiff’s suit the trial judge said: “because Mr. Howard’s license was not suspended for the first time when he applied for the restricted driver’s license, his petition is hereby denied”.

In appealing plaintiff contends the trial judge erred (1) in applying LSA-R.S. 32:415.1 retroactively, since his first suspension occurred prior to the effective date thereof, and (2) by dismissing his petition denied him due process.

ERROR NO. 1

Appellant argues the general rule that statutes are to be applied prospectively rather than retroactively, thus in determining what is the first suspension under LSA-R.S. 32:415.1, only those suspensions after the effective date of Act 618 of 1976 can be considered.

We are convinced the legislature intended a retroactive application of this statute. LSA-R.S. 32:415.1 A (2) specifically allowed the granting of a restricted driver’s license for a suspension invoked prior to the effective date. The legislative mandate is clear that LSA-R.S. 32:415.1 only applies to “first time” suspensions. Smith v. State, Dept. of Public Safety, 352 So.2d 443 (La.App. 3rd Cir. 1977).

ERROR NO. 2

Appellant argues that the trial judge’s interpretation of the statute discriminates against him on an arbitrary basis, and thus he is denied due process.

We above agreed with the interpretation of LSA-R.S. 32:415.1 by the trial judge, as to the intention of the legislature. Prior to the enactment of this statute, there did not exist the availability of the restricted driver’s license. The legislature saw a need for a partial reprieve from the hardships caused by the suspension of driving privileges, and granted this partial reprieve to first time only suspensions. We cannot envision how a reprieve to first time only suspensions is a denial of due process.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Edgar GIBSON v. EXXON CORPORATION.
    No. 12041.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Patsy Jo McDowell, Baton Rouge, of counsel for plaintiff-appellant Edgar Gibson.
    William N. Faller, and Calvin E. Hardin, Jr., Baton Rouge, of counsel for defendant-appellee Exxon Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal by plaintiff, Edgar Gibson, from a judgment which sustained a peremptory exception of prescription filed by the defendants, Ed Percy and Jacob B. Swanson, Jr., and dismissed his suit for personal injuries.

On February 18, 1974, plaintiff was injured as a result of a work related accident. A suit in tort seeking damages was filed on February 14, 1975, against Exxon Corporation. Exxon answered and filed a motion for summary judgment, contending that plaintiff’s sole remedy against Exxon, allegedly a “principal employer” under LSA-R.S. 23:1061, is provided under the Workmen’s Compensation Act.

On March 30, 1977, plaintiff filed a “Supplemental and Amending Petition” joining Ed Percy, Jacob B. Swanson, Jr. and Maryland Casualty Company as additional defendants.

The trial court on April 1, 1977, granted Exxon’s motion for summary judgment, and dismissed the suit against Exxon. Plaintiff did not appeal this judgment.

On July 11, 1977, defendants, Percy and Swanson, filed a peremptory exception of prescription, contending that they were not sued timely because they were not joined as defendants within the one year prescriptive period. This exception was sustained and the suit dismissed on August 1, 1977.

Tort actions prescribe in one year. LSA-C.C. art. 3536. Accordingly, this suit against defendants, Percy and Swanson, filed on March 30,1977, more than one year after plaintiff’s injury, is prescribed, absent a suspension or interruption of prescription.

Plaintiff contends that prescription against Percy and Swanson was interrupted by the timely filed suit against Exxon. Plaintiff relies on LSA-C.C. art. 2097, which provides:

“A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

This article is applicable only between solidary debtors. Therefore, there must exist a solidary obligation to plaintiff on the part of Exxon and the defendants joined after the lapse of the prescriptive period. Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975).

However, Exxon is not liable to plaintiff on the claim in tort asserted in the instant suit. LSA-R.S. 23:1032 and 23:1061.

Accordingly, LSA-C.C. art. 2097 is not applicable since Exxon cannot be a solidary debtor with defendants, Percy and Swanson. Favors v. Southern Industries, Inc., 344 So.2d 693 (La.App. 1st Cir. 1977).

The trial court properly sustained defendant’s exception of prescription and dismissed plaintiff’s suit.

For the above reasons, the judgment of the trial court is affirmed at plaintiff’s cost.

AFFIRMED.

      . Plaintiff’s suit against Maryland Casualty Company was dismissed on June 27, 1977, after the trial court sustained Maryland’s motion for summary judgment. Plaintiff did not appeal this dismissal.


text:
    CHARLES RAGUSA & SON v. COMMUNITY STATE BANK.
    No. 12045.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Iddo Pittman, Hammond, for Charles Ra-gusa & Son, plaintiff-appellee.
    Arthur W. Macy, Hammond, for Community State Bank, defendant-appellant.
    Rykert O. Toledano, Jr., Covington, for Southern Masonry, Inc., third party defendant.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

On June 30, 1972, Charles Ragusa & Son, a partnership consisting of Charles Ragusa and Michael Ragusa, issued check # 2668, drawn on Community State Bank in the amount of $5,000, to Southern Masonry. Subsequently, Ragusa & Son was advised by the payee that the check had been lost or misplaced and that a replacement check should be issued, a second check for the same amount was issued and forwarded to the payee as a substitute for check # 2668. Contemporaneously, a verbal stop payment order was given to the bank on the lost check. The replacement check was cashed by the payee and paid by the bank in due course.

In July, 1975, check # 2668 was deposited by the payee in its account at BNO; presented to and accepted by Community State Bank; and charged to the Ragusa & Son account on July 17, 1975. Ragusa & Son was not aware of this transaction until August 4, 1975, when it received its monthly bank statement. Charles Ragusa returned the check to the bank on August 4, 1975, and demanded that the account be credited for the amount of the check because a stop payment had been issued on the check and the check had a “stale” date. The bank accepted the return of the check and credited the account for the $5,000.

The bank marked the check “returned stale date” and sent the check to the Federal Reserve Bank, seeking a refund. On August 6, 1975, the Federal Reserve Bank returned the cheek, noting that they would not accept the check since it was not returned timely.

At this point the testimony is in conflict regarding whether or not Mr. Angelo, the president of the bank, discussed the return of the check with Ragusa. In any event, the bank held the check until September 10, 1975, when it was again charged to the Ragusa & Son account. Angelo then sent a letter dated September 10, 1975, to Ragusa, informing him of the bank’s actions.

Ragusa received this letter on September 13, 1975. (The bank contends that he should have received it earlier). In the interim, however, the $5,000 debit overdrew the account and caused the dishonor of another check, dated September 11, 1975, in the amount of $3,100.50, issued to a third party.

This suit was filed on September 19,1975, by Ragusa & Son against the bank, to collect the amount of the check ($5,000) and to recover damages. By a supplemental and amending petition, Charles Ragusa, Michael Ragusa, Charles Ragusa, Jr., Charles Ragu-sa & Son (a partnership consisting of Charles Ragusa and Charles Ragusa, Jr.), and Charles Ragusa & Son, Inc., were added as parties plaintiff. The bank filed a third party demand against the payee, Southern Masonry, Inc., seeking indemnity.

The trial court, without assigning written reasons, rendered judgment in favor of plaintiff, Charles Ragusa & Son (a partnership consisting of Charles Ragusa and Michael Ragusa), for the amount of the check and for damages in the amount of $2,500 together with interest from judicial demand. Additionally, the trial court rendered judgment on the third party demand in favor of the bank for the identical sums. The bank has appealed.

Initially, the bank contends that the trial judge’s failure to provide written reasons for judgment in response to its motion is error and that this appeal must be remanded.

We reject this contention inasmuch as the motion was filed subsequent to the rendition of the judgment. Richard v. Richard, 359 So.2d 696 (La.App. 1st Cir. 1978).

LSA-C.C.P. art. 1917 requires that the trial court, when requested to do so by a party, shall give in writing its findings of fact and reasons for judgment.

Although the article does not provide the time limit within which such a request must be made (note that the request does not have to be made in writing), this court, en banc, in the recent Richard decision approved the reasoning of the 3rd Circuit in Fontenot v. State, Department of Highways, 300 So.2d 864 (La.App. 3rd Cir. 1974) that the request must be made before judgment is rendered.

Although a panel of the 3rd Circuit in La Calle v. Ashy Enterprises, 353 So.2d 439 (La.App. 3rd Cir. 1978) has expressed doubt as to the correctness of Fontenot, we subscribe to Fontenot as the better view. We see no good reason for a party to be able to wait until after a decision has been rendered to ask for written reasons — -there is more than ample time to do so before.

Next, the bank contends that it is not liable to plaintiffs in that it acted properly in accepting check # 2668 since there was no valid stop payment order in effect and since it was acting in “good faith” under LSA-R.S. 10:4-404.

We do not view the issue of the stop payment as controlling in view of the undisputed testimony that the stop payment was never renewed. Consequently, the stop payment expired in 1972. See LSA-R.S. 6:42, repealed by Acts 1974, No. 92, sec. 2.

Regarding the bank’s good faith in paying a stale check, LSA-R.S. 10:4-404 provides:

“A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer’s account for a payment made thereafter in good faith.”

Additionally, LSA-R.S. 10:1-201 defines “good faith” as meaning “honesty in fact in the conduct or transaction concerned.”

We have been unable to find any Louisiana case specifically dealing with the payment of a stale check and the aspect of good faith under LSA-R.S. 10:4-404. However, it seems obvious that although LSA-R.S. 10:4-404 protects a bank which pays a stale check so long as it acts in “good faith”, it does not eliminate the requirement of ordinary care which a bank must observe in all its dealings. LSA-R.S. 10:4-103(1) Compare Hersbergen, The Bank-Customer Relationship Under the Louisiana Commercial Laws, 36 La.L.Rev. 29 (1975).

Considering this burden on a bank seeking the protection of the statute, we do not believe that it is sufficient for a bank merely to utter the conclusionary allegation of good faith. On the contrary, when a bank’s actions are put at issue, it is incumbent upon the bank to show that it exercised the requisite care with regard to its customer. This the bank has failed to do in the instant case. In fact, the bank did not introduce any evidence in support of its actions or to prove its alleged good faith.

We believe that the payment of such an obviously stale check, three years old, demonstrates the bank’s lack of due care and prevents it from claiming the defense of good faith afforded by LSA-R.S. 10:4— 404.

The measure of recovery in such situations is stated in LSA-R.S. 10:4-103(5), as follows:

“The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as a proximate consequence.”

We find that the trial court properly awarded the full amount of the check, $5,000.

Third, the bank contends that there is insufficient evidence in the record to support the trial court’s $2,500 award for damages.

In essence, the claim for damages centers on the bank’s refusal to cash the $3,100.50 check issued by Ragusa & Son on September 11, 1975.

Damages for wrongful dishonor are provided by LSA-R.S. 10:4-402, which states:

“A payor bank is liable to its customer for damage proximately caused by the wrongful dishonor of an item.”

Plaintiffs proved: that the bank failed to exercise due care in paying check # 2668; that the bank’s actions caused the account to be overdrawn; and that the bank wrongfully refused to honor the $3,100.50 check because of this overdraft. However, plaintiffs did not prove that any loss was proximately caused by the bank’s actions. Neither is there any testimony that plaintiffs’ credit or commercial reputation was affected in any way by the bank’s actions.

The trial court’s award of damages is not justified by the record and will be reversed.

Finally, the bank contends that the trial court erred in awarding any sum to Charles Ragusa & Son (a partnership consisting of Charles Ragusa and Michael Ragusa) for the reason that it is impossible to determine which plaintiff has sustained the loss.

The bank account involved is in the name of Charles Ragusa & Son. This account was opened and originally used by the partnership consisting of Charles Ragusa and Michael Ragusa. It was during the existence of this partnership that check # 2668 was issued. On July 2, 1975, this partnership was dissolved and a new partnership under the same name, consisting of Charles Ragusa and Charles Ragusa, Jr., was formed. The new partnership continued using the account in question. This latter partnership was incorporated as Charles Ragusa & Son, Inc., on September 2, 1975. The corporation also continued to use the same account. In fact, the Charles Ragusa & Son account was continuously in use without interruption from before 1972 until sometime after September, 1975, although there were changes in the parties and nature of the business.

When the account was charged for check # 2668 on September 10, 1975, the corporation was using the account and corporation funds were debited. Although there is testimony in the record which would indicate that the original partnership would bear the loss for check # 2668, there is nothing in the record to show that the corporation has relinquished or assigned its claim to this partnership. Therefore, the corporation is the party entitled to reimbursement for check # 2668.

For the above reasons, the judgment of the trial court is reversed insofar as it awarded the sum of $2,500 in damages; is amended to award judgment in favor of Charles Ragusa & Son, Inc., rather than Charles Ragusa & Son (a partnership consisting of Charles Ragusa and Michael Ra-gusa); and is affirmed in all other respects. Based on this Court’s discretion under LSA-C.C.P. art. 2164, all costs are assessed against appellant.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.


author: PONDER, Judge.

text:
    James W. WRIGHT v. AETNA LIFE AND CASUALTY COMPANY.
    No. 12047.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Kramer & Davis, James D. Davis and James M. Buck, Alexandria, for plaintiff-appellant.
    Charles M. Hughes, Bogalusa, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of his suit in workmen’s compensation for total and permanent disability on a peremptory exception of prescription.

The issues are the validity of the finding that the suit was filed more than one year after the date of last payment, the validity of the finding that the three year prescriptive period for partial disability is inapplicable and the validity of the dismissal without an opportunity to amend.

We reverse and remand.

Plaintiff was injured while working at Bell Aero Space. Aetna Casualty and Surety, Bell’s insuror, made payments for total disability through July 27, 1976. The petition was filed on August 3, 1977.

The applicable prescriptive period to the claim for total disability is one year from the date of either injury or last payment. Plaintiff claims that defendants have failed to meet their burden of proof since they did not show that the check was actually paid on August 2, 1976. We disagree. Plaintiff deposited the last check on that date; he received the check on or before that date. Plaintiff does not contest that the check was later honored by Aetna. Since the check was cashed, the date of last payment for purposes of prescription is the latest date that the check could have been received by plaintiff. Seliga v. American Mutual Liability Insurance Co., 174 So.2d 878 (4th Cir. 1965); and see Price v. Gas & Well Operating Service, 267 So.2d 598 (La.App. 3rd Cir. 1972), writs refused, 263 La. 625, 268 So.2d 680 (1972).

Plaintiff also claims that the one year period is inapplicable because defendant lulled him “into a false sense of security, causing him to withhold suit until after the period was expired, . . ,”. This, he asserts, results from an offer to compromise prior to the suit being filed. We find no misstatements that would confuse the plaintiff as to the date that his claim prescribed. Price, supra.

We agree with the trial court that the claim for total and permanent disability has prescribed.

Plaintiff also argues that the letter containing the offer to compromise on a partial disability basis should be given the effect of misleading him as to the applicable prescriptive period. Dupaquier, supra, and Price, supra. We find no such misleading effect. The letter does not refer to the applicable time period. Despite the offer to compromise on a partial disability basis, plaintiff chose to file a claim only for total and permanent benefits in this suit.

Plaintiff also assumes in brief that the three year prescription period applies to a loss of a physical function. We find no such change made by the amendment to LSA-R.S. 23:1209.

Plaintiff asserts that the claim for total and permanent disability necessarily includes the claims for partial disability and loss of a physical function; that these would carry a three year prescriptive period. LSA-R.S. 23:1209 states in part:

“. . . in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. * * * ”

Whether or not claims for total disability and for partial disability be two causes of action or merely different remedies in one cause of action, the legislature has made a distinction for purposes of prescription. Plaintiff has asked for relief for only total and permanent disability. This claim, as stated above, has been prescribed.

However, under LSA-C.C.P. Art. 934, if the grounds of the objection may be removed by amendment, the court shall allow a delay to amend. We note that plaintiff’s counsel argued that leave to amend should be afforded. The court was in error in not granting that leave. We therefore remand with instructions that leave to amend be granted within a reasonable time. Costs of this appeal are taxed to the appellees. All other costs are to await the outcome of the case.

REVERSED AND REMANDED.

      . Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 1972).


text:
    John C. BONFIGLIO v. Kay M. McDEMPSEY and the State Farm Insurance Co.
    No. 12048.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Gerard E. Kiefer, Baton Rouge, of. counsel for plaintiff-appellant John C. Bonfiglio.
    Horace C. Lane, Baton Rouge, of counsel for defendants-appellees Kay M. McDemp-sey and State Farm Ins. Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, John C. Bonfiglio, brought this suit against defendants, Kay M. McDemp-sey and State Farm Mutual Automobile Insurance Company, to recover damages for personal injuries sustained in an automobile-pedestrian accident. The trial court found both the driver of the vehicle, McDempsey, and the pedestrian, plaintiff, negligent and rendered judgment in favor of the defendants, dismissing plaintiff’s suit. Plaintiff has appealed.

The accident occurred on the morning of May 8,1975, in the parking lot of the Savoy Plaza Apartments, located on Wooddale Blvd., in Baton Rouge. Plaintiff had parked his car on the north side of the parking lot and was walking across the lot in a general southeasterly direction toward, the apartment buildings. McDempsey, driving in a westerly direction, drove by the plaintiff, passing from his left to right, as she approached the parking lot exit onto Wooddale Blvd. The exit was blocked, however, because of a stalled car. McDempsey decided to back up and leave the parking lot by a different exit. She turned around, looked over her right shoulder through the rear window, and also checked the rearview mirror to make sure that her rearward path was clear. She then backed up slowly. When she had backed approximately ten to fifteen feet, her vehicle and plaintiff made contact. The contact did not throw the plaintiff to the ground, though he fell to one knee. McDempsey had not seen plaintiff at any time prior to this contact.

The trial court held that McDempsey was negligent for failing to observe the plaintiff as she backed, but that plaintiff was barred from recovering from the defendants because he was contributorily negligent for failing to observe the backing automobile.

Plaintiff contends, citing Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978), that contributory negligence is no longer a bar to recovery in an automobile-pedestrian accident suit and that the judgment of the trial court must be reversed.

The Supreme Court in Baumgartner expressly stated the intention to abolish the-contributory negligence defense in automobile-pedestrian cases. However, the absolution of plaintiff from contributory negligence, via Baumgartner, does not compel reversal of the trial court’s judgment in the instant suit.

The trial judge noted in his Written Reasons for Judgment that the evidence was in conflict as to whether McDempsey hit plaintiff or whether plaintiff “slapped” or walked into the car. The trial judge did not resolve this conflict inasmuch as he found plaintiff contributorily negligent. With the apparent demise of the defense of contributory negligence in such cases, the resolution of this conflicting evidence becomes essential.

Plaintiff testified that he was struck by the left rear corner of McDempsey’s car.

The only eyewitness, Mr. T. V. Thompson, testified that he observed the incident from a balcony approximately fifty or sixty feet from the scene. He testified emphatically that the vehicle did not strike plaintiff, but that plaintiff more or less slapped or ran into the car. Thompson stated that the contact was at the right rear of the car.

The trial court, accepting Thompson’s testimony, held that the contact occurred at the right rear.

We believe that the testimony of Thompson, a disinterested witness, has the greater probative value. We therefore find that the car did not strike plaintiff.

Consequently, plaintiff has failed to prove one of the essential elements of his cause of action, i. e. causation. See Pence v. Ketchum, 326 So.2d 831 (La.1976).

For the above reasons, the judgment of the trial court is affirmed at plaintiff’s cost.

AFFIRMED.


text:
    Donald Ricky NORTON and Sharon C. Norton v. Barney Dean LAY et al.
    No. 12050.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Thomas H. Matuschka, Baton Rouge, of counsel for plaintiffs-appellees, Donald Ricky Norton and Sharon C. Norton.
    Charles S. McCowan, Jr., Baton Rouge, of counsel for defendant-appellant, Barney Dean Lay et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This suit was consolidated for purposes of trial and appeal with City of Baton Rouge v. Lay et al., Number 12051 on the docket of this Court, 360 So.2d 243. Both suits will be discussed in this opinion, however, separate judgments shall be rendered.

These consolidated suits seek injunctive relief for the alleged violations of subdivision restrictions and municipal zoning ordinances respectively. From judgments granting preliminary and permanent injunctions, defendants have appealed.

In suit number 12050, Donald and Sharon Norton, property owners in College Town Subdivision, sue Barney Dean Lay, Jr., owner of Lot 3, Square 8, College Town Subdivision, Bruce Foreman, and Interior Reflections, Inc. for violating the restrictions of College. Town Subdivision by conducting a business on Lot 3, Square 8, College Town Subdivision. The City of Baton Rouge in suit number 12051 sues Lay and Foreman for operating the business known as Interi- or Reflections, Inc. consisting of retail sales, on the above described property, in violation of the city’s zoning ordinances.

As to the Norton Suit, defendants-appellants stipulated that there was a violation of the “indirect business activity” prohibition in the restriction; however, they pleaded that there was an unauthorized use of summary process and, in the alternative, that any violation had prescribed by virtue of LSA-R.S. 9:5622. As concerns the city suit, defendants-appellants filed an exception of unauthorized use of summary process, and took the position that there was no violation of the zoning ordinance because of the “home occupation” exception contained therein. In the alternative, they pleaded prescription by virtue of LSA-R.S. 9:5625. Petition was filed by the Nortons on October 20, 1977, and by the City on October 28, 1977. Based on stipulations that the testimony on the exceptions would be applicable to the merits, both preliminary and permanent injunctions were granted.

The issues in this case are the use of summary process and the time at which liberative prescription begins to run against the violation of a subdivision restriction and/or a municipal zoning ordinance.

SUMMARY PROCESS

It is argued by the defendants that summary process can only be resorted to in those cases expressly authorized by law, and that no law is cited which permits the use of summary process to prevent the use of privately owned property before a thorough trial on the merits.

LSA-C.C.P. art. 3601 allows the issuance of an injunction in cases where irreparable injury, loss, or damage may otherwise result to the applicant, and that during the pendency of the action for the injunction, the court may issue a temporary restraining order, a preliminary injunction, or both. LSA-C.C.P. art. 3602 provides that a preliminary injunction shall not issue unless notice is given and an opportunity had for a hearing. The preliminary injunction hearing shall be assigned for not less than 2 nor more than 10 days after service of the notice. The jurisprudence is legion with cases that recognize injunctive proceedings as a proper vehicle to prevent violations of subdivision restrictions. We view the defendants’ exception of unauthorized use of summary process to be directed to the hearing conducted for the purpose of determining whether a preliminary injunction should be issued. We are of the opinion that LSA-C.C.P. arts. 3601 and 3602 contemplate the use of summary process for the issuance of a preliminary injunction.

Additionally, a preliminary injunction can be classified as an incidental question arising in the course of litigation seeking a permanent injunction, and thus, summary process would be expressly authorized under LSA-C.C.P. art. 2592(1). Therefore, we find no error on the part of the trial judge in denying the exception of unauthorized use of summary process.

PRESCRIPTION

Subdivision Restrictions.

LSA-R.S. 9:5622A in part provides that “actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation”.

The Louisiana Legislature in the 1977 Regular Session adopted Act 170 which revised Book II of the Louisiana Civil Code by repealing Title V, fixing limits and surveying lands, containing Articles 823 through 855, and substituting therefor a new Title V, building restrictions, containing Articles 775 through 783. This Act was effective on January 1, 1978. Article 781 thereof provides:

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

Comment (a) to this Article states that it does not change the law.

In promulgating this article, the legislature has codified the prior applicable standards for determining the date upon which prescription for a violation of a subdivision restriction commences to run. Therefore, we interpret LSA-R.S. 9:5622A,'the prior law applicable to this case, to mean that prescription begins to run from the date of a noticeable violation of the restriction, and not from the commencement of a secretive or surreptitious violation. Thus, we proceed to determine if a noticeable violation occurred more than two years prior to the filing of the Norton’s suit.

Barney Dean Lay, Jr. purchased Lot 3, Square 8, College Town Subdivision on July 6, 1972. In October of 1974, Bruce Foreman, a roommate of Barney Lay, started an interior decorating business known as Interior Reflections, Inc., and has continued in business since that time. The occupational license for Interior Reflections, Inc. listed the business address as 1284 Perkins Road, and the business telephone listing was other than the Amherst address.

The residence located on subject property at municipal number 302 Amherst is a tastefully decorated one story dwelling that does not give any outward appearance of being anything other than a residence. When the property was purchased in 1972, it was advertised as containing an office, and when Interior Reflections, Inc. began its operations, Bruce Foreman used the office on the premises as well as an office on Perkins Road. In October of 1975, Barney Lay became a shareholder in Interior Reflections, Inc. and began working with Foreman in November of that year.

The defendants argue that their business activities were not conducted secretively, but that they did not list the Amherst address in the telephone book because they did not want walk-in customers. Visits and consultations with clients were conducted by appointment only, and were generally held in the client’s home or place of business. The only merchandise kept on the premises was carpet and fabric samples which were not for sale, but were used only for reference. Clients of the defendants would visit the Amherst address to review samples from which selections were made.

The defendants’ witnesses testified that they knew of the business activity being conducted at 302 Amherst; however, in reviewing their testimony, we conclude that those who were residents of the subdivision had either worked for the defendants, or were their clients.

Conversely, the plaintiffs along with several residents of the subdivision testified that they had no knowledge of the business until after a December 7, 1975 newspaper article concerning the operations of Interior Reflections, Inc. and giving 302 Amherst as its business address. These residents include members of the board of the Civic Association, as well as next door neighbors.

Further, the city employees also testified that upon inspections they could not see any violations of the city zoning ordinances.

We are convinced that there was no error on the part of the trial judge in concluding that a noticeable violation of the subdivision restrictions had not occurred more than two years prior to the date that suit was filed. Based on the defendants’ admission of violation of the subdivision restrictions and the overruling of their exception of prescription, the award of the preliminary and permanent injunction is justified.

Zoning Ordinance.

The defendants do not admit any violation of the city zoning ordinances, but alternatively if there is any, they then plead prescription.

The subject property is zoned A-l, single family dwelling. In an A — 1 zone, a home occupation accessory use is permitted. Baton Rouge City Code 7:7.104 provides:

“A home occupation is an accessory use; it is an activity carried on only by a resident member of a family meeting the following conditions:
(a) Only one nonilluminated sign no larger than one square foot in area shall be used:
(b) Nothing shall be done to make the building appear in any way as anything but a dwelling;
(c) No business such as a shop or store shall be conducted upon the premises;
(d) No one shall be employed from outside the resident family;
(e) Mechanical equipment used shall be only that normally used in, or found in a single-family dwelling.”

The city argues that defendants are in violation of subsections (c) and (d) of the above ordinance.

The city basically argues that under subsection (c) the defendants operated a store or shop.

A store is any place where goods are kept for sale, or are sold, whether by wholesale or retail. 83 C.J.S. Store, p. 100 (1953). It should make no difference whether the merchandise to be sold is on the premises or must be ordered for the customer, as in a modern day catalog store, to constitute a store under the above definition.

The record in this case points out that increasingly clients visited 302 Amherst, viewed samples and placed orders. Generally, the merchandise ordered was delivered to the warehouses operated by the defendants, however, there is sufficient evidence to indicate that on numerous occasions merchandise was delivered to the Amherst address and eventually picked up by the purchasers.

In City of Baton Rouge v. Allen, 106 So.2d 740 (La.App. 1st Cir. 1958), this Court held that a registered cosmetician who operated a beauty shop in her home, and who took orders for merchandise from customers, ordered the merchandise, received it and held it until the customers picked it up was not operating a shop or store in violation of basically the same city ordinance as is involved in this case. There we said:

“We do not think that this, coupled with her activities as a beautician, sufficient to constitute her business the operation of a ‘shop’ or ‘store’ within the generally accepted and understood meaning of the terms.”

Each case must be decided on its own facts, and thus, though we do not overrule City of Baton Rouge v. Allen, supra, we are of the opinion that the facts presented in this case are more consistent with the generally accepted and understood meaning of the terms “store” or “shop”.

Since we have above concluded that the defendants were in violation of Subsection (c) of the ordinance, we pretermit any discussion as to the violation of Subsection (d).

Prescription.

LSA-R.S. 9:5625 provides that actions to enforce zoning restrictions prescribe in two years from the date the municipality first had written notice of the violation.

Though city inspectors had visited the premises previously, once informing one of the defendants that they could not have paid employees under the home occupation exception, and another time determining that there were no visible violations, there is no evidence in the record that the city of Baton Rouge ever received any notice in writing of a violation. Additionally, the notice received by the city of Baton Rouge which resulted in the filing of this lawsuit was well within the two year prescriptive period.

Therefore, for the above and foregoing reason^, the judgment of the trial court in suit number 12050 is affirmed at appellants’ costs.

AFFIRMED.


text:
    CITY OF BATON ROUGE v. Barney Dean LAY et al.
    No. 12051.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Joseph F. Keogh, Parish Atty., Charles Pilcher, Asst. Parish Atty., Baton Rouge, of counsel for plaintiff-appellee, City of Baton Rouge.
    Charles S. McCowan, Jr., Baton Rouge, of counsel for defendant-appellant, Barney Dean Lay and Bruce Foreman.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This suit was consolidated for purposes of issuance of a preliminary injunction and trial on the merits for a permanent suit entitled, “Donald Rickey Norton and Sharon C. Norton v. Barney Dean Lay, Jr., et al.” number 12050, on the docket of this Court, 360 So.2d 239. For the reasons given in the opinion this day rendered in suit number 12050, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: SARTAIN, Judge.

text:
    Curtis CARDONE, Plaintiff-Appellee, v. G & R SERVICE CENTER, INC., et al., Defendants-Appellants. Revonne HARDEN et al., Plaintiffs-Appellees, v. Curtis CARDONE, Defendant-Appellant.
    Nos. 11771, 11963.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Michael R. Connelly, Baton Rouge, of counsel for plaintiff-appellee and defendant-appellant Curtis Cardone.
    Eugene R. Groves, Baton Rouge, of counsel, for defendant-appellant and plaintiff-appellee G & R Service Center, Inc, et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

These two cases are both appeals from default judgments.

The first suit, Cardone v. G & R Service Center, Inc., et al. (# 11,771), is an action in tort brought by Curtis Cardone against G & R Service Center, Inc, Revonne Harden and others. Judgment was rendered therein in favor of Cardone in the sum of $25,198.79.

The second suit, Revonne Harden, et al. v. Curtis Cardone (# 11,963) is an action brought by the defendants in the first suit to have the judgment rendered against them declared a nullity pursuant to C.C.P. Art. 2004.

The defendants in both suits have timely appealed. We consolidated these causes for consideration in this court.

In the first suit, one of the issues raised by the defendants therein is the contention that the preliminary default upon which the confirmation was based was prematurely entered and that the judgment is therefore void. We find this contention meritorious and, therefore, do not consider the ill practices complained of.

Suit No. 11,771 was filed on April 26, 1977. However, service was not made upon the defendants until April 29, 1977. Preliminary default was entered on May 16, 1977. On May. 20, 1977, evidence was adduced to confirm the default and the matter was taken under advisement by the court. Judgment was rendered and signed on June 15, 1977.

When a defendant fails to answer in the time prescribed by law a default judgment may be rendered against him. C.C.P. Art. 1701. The time prescribed by law is fifteen days after service of citation. C.C.P. Art. 1001. In computing this delay the date of service is not to be computed. When the last day of the period is a legal holiday the period runs until the end of the next day which is not a legal holiday. C.C.P. Art. 5059. The period therefore began on April 30, 1977. The fifteenth day was Saturday, May 14, 1977. Both this day and Sunday, May 15, 1977, were legal holidays, East Baton Rouge Parish being in the Sixth Congressional District. R.S. 1:55(A)(1). The delay for answering was therefore extended through May 16, 1977. The first date on which a preliminary default could have validly been entered was May 17, 1977. The preliminary default taken in this case was therefore premature. Under the Code of Practice a judgment rendered pursuant to a prematurely entered judgment by default was null. Kelly v. Kelleher, 186 La. 51, 171 So. 569 (1937). This rule was based upon Articles 180 and 310 of the Code of Practice. Articles 1001 and 1701 of the present Code of Civil Procedure are based upon these articles. We do not believe that the changes in wording were intended to change this rule of law. We must therefore reverse the judgment of the trial court and remand for further proceedings.

The appeal in Number 11,963 of the judgment declaring the judgment in Number 11,771 to be a nullity is rendered moot by our reversal of the judgment in Number 11,771. We will therefore dismiss the appeal in Number 11,963 as moot.

Accordingly, the judgment in Cardone v. G & R Service Center, Inc., et a 1. (# 11,771) is reversed and remanded. All costs in these proceedings relating to the confirmation of default and this appeal are assessed against the plaintiff. All other costs are to await a final determination on the merits.

In Revonne Harden, et al. v. Curtis Cardone (# 11,963), the defendant’s appeal is dismissed as moot at his cost.

NUMBER 11,771—REVERSED AND REMANDED.

NUMBER 11,963—APPEAL DISMISSED.


text:
    HILTON HOTELS CORPORATION d/b/a Hilton Inn, Plaintiff-Appellee, v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana, Defendant-Appellant.
    No. 11997.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Michael F. Little, New Orleans, of counsel, for plaintiff-appellee Hilton Hotels Corporation, d/b/a Hilton Inn.

      David L. Dawson, W. Steven Mannear, Baton Rouge, James A. Tramonte, Metairie, of counsel, for defendant-appellant Joseph N. Traigle, Collector of Revenue, State of Louisiana.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a suit for sales tax refunds brought by Hilton Hotels Corporation (Hilton) against the Collector of Revenue for the State of Louisiana (Collector). After trial the lower court rendered judgment in plaintiff’s favor as to two of the three series of transactions originally in dispute. The other dispute was decided in defendant’s favor. Only the Collector has appealed. He asserts error only as to one of the disputes decided in favor of plaintiff, he having conceded the correctness of the plaintiff’s position on the other matter subsequent to trial but prior to judgment. Only one issue is therefore presented for our determination: Were the transactions between Hilton and Hotel Equipment Corporation (HEC) sales subject to the Louisiana Sales Tax?

The facts are undisputed. HEC is a wholly owned corporate subsidiary of Hilton. It is controlled by the same officers and directors as Hilton. When an individual operating unit of Hilton desires to purchase an item of furniture or a fixture, it places an order for the goods with HEC, which then purchases the goods directly from the manufacturer. The manufacturer delivers the goods directly to the operating unit, but bills HEC for the actual sales price. No stocks of merchandise are maintained by HEC. HEC bills the operating unit the purchase price plus a flat markup of a certain percentage depending on the nature of the item. On the transactions in question the markup was ten percent. Although HEC was not set up to make a profit, it does in fact normally show small profits which are reported for federal tax purposes on a consolidated return which it files with Hilton. See 26 U.S.C. § 1501, et seq.

The trial judge further found that the transactions between Hilton and HEC were not done at “arm’s length” and that HEC acted simply as the purchasing division of the plaintiff. Although we do not dispute these findings we cannot agree with the trial judge that they warrant the legal conclusion that the transactions between Hilton and HEC were not subject to the Louisiana Sales Tax.

We believe these transactions to be clearly subject to taxation under our sales tax law. “There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein . . .” R.S. 47:302(A). There is no question but that Hilton was an ultimate consumer of the goods which were tangible personal property. The only question is therefore whether or not there was a sale between Hilton and HEC. “ ‘Sale’ means any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property, for a consideration . . . ” R.S. 47:301(12). In this case title was unquestionably transferred from HEC to Hilton for a consideration. A sale appears to have been made.

Hilton, however, asserts that if one looks to the substance rather than the form of the transaction, no sale in fact occurred. We disagree. The two corporations are separate and distinct legal entities. C.C. Art. 435. There is nothing to prevent their contracting a sale. It ill behooves Hilton to attempt to disregard the corporateness of its subsidiary when it is in its interest so to do, while still obtaining whatever benefits flow from conducting business as separate corporations. Furthermore, the undisputed facts as proven by Hilton are not such as are normally sufficient to warrant piercing the corporate veil. See Kingsman Enterprises, Inc. v. Bakerfield Electric Co., 339 So.2d 1280 (La.App. 1st Cir. 1976). On the contrary, the facts show that the transactions in question were fully documented, that HEC had its own employees which it paid from its own funds, and that HEC had its own corporate officers (although they were in fact the same as Hilton’s). We hold that the transactions in question were sales subject to the Louisiana Sales Tax. We are buttressed in our conclusion by the fact that this is the result generally reached by the courts of our sister states which have decided this issue. 68 Am.Jur.2d, Sales and Use Taxes, § 97 (1973); Annotation, 64 A.L.R.2d 769 (1959).

For these reasons, the judgment of the district court is reversed insofar as it awarded $1040.33 as a refund for the sales taxes paid in protest by Hilton relating to its transactions with Hotel Equipment Corporation. The judgment is affirmed insofar as it awarded Hilton the sum of $392.66. Accordingly, the judgment of the district court is amended to reduce the same from the original sum of $1432.99 to the sum of $392.66, together with legal interest thereon from the date of judicial demand until paid. All costs of these proceedings are assessed in the proportions of two-thirds against plaintiff and one-third against the Collector, with the latter amount being subject to such costs as are permitted by law.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: ELLIS, Judge.

text:
    Paul F. GAUDE and Claudia Renfro Gaude v. Robert L. EDWARDS.
    No. 12005.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      A. C. Powell, III, Hammond, for Paul F. Gaude et al., plaintiffs, appellees.
    Tom H. Matheny, Hammond, for Robert L. Edwards, defendant, appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

On October 12, 1967, Robert L. Edwards executed a bond for deed in favor of Paul F. Gaude, by virtue of which he agreed to transfer 20 acres of land in Tangipahoa Parish to Gaude in consideration of the payment of $13,500.00. Under the terms of the agreement, $2,000.00 was paid in cash, and Mr. Gaude agreed to pay the balance of $11,500.00 in monthly installments of $72.00, “attributable first to interest at the rate of eight (8%) per cent per annum on the unpaid balance of Eleven Thousand Five Hundred and no/100 ($11,500.00) Dollars, and the remainder of each said payment attributable to principal, until a total of Thirteen Thousand Five Hundred Dollars ($13,500.00) has been paid on account of said principal, which includes the Two Thousand Dollars ($2,000.00) down payment.”

On April 17, 1972, Mr. Edwards filed a petition for executory process, alleging that Mr. Gaude and his wife, Claudia Renfro Gaude, had given a note in connection with the bond for deed, and had granted a special mortgage on the property under the terms thereof. It is also alleged that Mr. and Mrs. Gaude had “consented that if payment is not made in accordance with the terms and stipulations of the bond for deed, the property might be seized and sold by executory process for cash . . . ”.

It is further alleged that Mr. and Mrs. Gaude had failed to make the payments due on March 5, 1972, and thereafter, and that the balance due was $13,420.06.

We note that, according to the terms of the bond for deed itself, no promissory note was given by Mr. Gaude, no mortgage was granted, and there was no consent for exec-utory process in the event of nonpayment. No copy of the bond for deed or of the alleged note appears in the record of the executory proceeding.

Mr. and Mrs. Gaude attempted to enjoin the executory proceeding on the ground that Mr. Edwards was required by R.S. 9:2945 to give 45 days notice to the purchaser of the intention to cancel the bond for deed if payment is not made. For reasons which do not appear of record, the injunction was denied, and on August 20, 1973, the property was sold by the Sheriff and bought in at the sale by Mr. Edwards for $14,100.00. Mr. Edwards paid $667.06 as costs, and retained the balance of $13,-432.94.

In the meanwhile, on February 27, 1973, this suit was filed, alleging the basic facts of the bond for deed and the foreclosure thereon. It is also alleged that Mr. and Mrs. Gaude, in February, 1972, had requested the balance due under the contract so that they might pay same and get title to the property. They allege that the balance of $13,420.06 is far in excess of the original amount of $11,500.00 which they had agreed to pay, that Mr. Edwards had refused to account for how that balance was determined, and that the foreclosure suit had been filed before the dispute could be worked out. It is further alleged that the credit standing of the petitioners had been damaged by the executory proceeding brought against them.

Plaintiffs ask for a judgment compelling defendant to transfer the property to them, after payment of the balance due under the bond for deed as determined by the court, and that defendant make an accounting of the balance due. Plaintiffs further pray for damages, including damage to their credit standing and attorneys’ fees.

To the petition, defendant filed an answer, a peremptory exception of no cause or right of action and a peremptory exception of res judicata. These exceptions were dismissed by the trial court. Subsequently, on May 31, 1976, the matter was submitted to the court on the merits on a joint stipulation of fact, which reads as follows:

“It is stipulated by and between the plaintiff and defendant that:
“I. The following documents are introduced into evidence:
“A. Bond for deed contract between Robert L. Edwards and Paul F. Gaude dated October 12, 1967.
“B. The entire record of Robert L. Edwards versus Paul F. Gaude and Claudia Renfro Gaude, Number 40,442.
“II. The following facts are uncontested and agreed upon between the plaintiff and defendant that:
“A. Petitioners were called upon to testify. They would testify that the original balance due under contract was $11,500.00 and the defendant would testify that the original balance due was $13,420.06.'
“B. It is the position of plaintiff that the bond for deed contract cannot be cancelled without the 45 days registered mail notice to Paul Gaude to bring the account up to date, which was not done (La.R.S. 9:2945).
“C. It is the position of the defendant that this question was resolved in the matter entitled Robert L. Edwards versus Paul F. Gaude and Claudia Renfro Gaude, No. 40,442.
“D. A temporary injunction was issued twice cancelling the sheriff’s sale in the above referred to executory process filed by Robert L. Edwards and the Honorable Gordon E. Causey dismissed the Gaudes’ rule for injunction and accounting of the balance due under the bond for deed contract.
“E. After the petition for executory process was filed, petitioners tendered the late payments under the bond for deed contract, however they were returned by Robert L. Edwards’ attorney by letter dated July 24, 1972.
“F. Petitioners pray for attorney fees as damages.
“G. Both parties submit the matter on these stipulations and the records and ask for fifteen (15) days apiece in which to file brief.”

Thereafter, judgment was rendered in favor of plaintiffs, decreeing that they have a “good, valid and marketable title” to the 20-acre tract; ordering defendant to transfer title thereto to plaintiffs on payment of $13,420.06; and ordering defendant to render an accounting of the amount due under the bond for deed contract. From this judgment, defendant has appealed. Plaintiffs have neither appealed nor answered the defendant’s appeal.

The first specification of error is that the judge should have maintained the exception of res judicata filed by defendant.

Article 2286 of the Civil Code provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

In the foreclosure suit, the thing demand-" ed by Mr. Edwards was that the property be seized and sold and the thing demanded by Mr. and Mrs. Gaude was that the proceeding be enjoined. In this suit, Mr. and Mrs. Gaude seek an accounting of their payments, and specific performance of the bond for deed contract, and damages. Mr. Edwards prays that their demands be rejected. Therefore, since the objects of the demand are not the same, the exception of res judicata was properly overruled.

We further note that the so-called executory proceeding accomplished nothing, since Mr. Edwards was the owner of the property at the inception of the suit. In effect, he paid $667.06 for the privilege of buying in his own property. It is clear from R.S. 9:2945 that the proper method of cancelling a bond for deed upon nonpayment in accordance with its terms, is by the giving of 45 days notice to the purchaser of the intent to cancel if all amounts due are not paid. It is not pretended that any such notice was given.

The second specification of error is that the judge erred in granting specific performance under the bond for deed contract. The argument made is basically the same as that made on the exception of res judicata.

As we appreciate the procedural posture of this case, Mr. Edwards is presently the record owner of the 20 acres, but his ownership is subject to the terms and conditions of the bond for deed contract. The executory proceeding neither added anything to nor detracted from his interest in the property. Mr. Edwards has never given the notice required by R.S. 9:2945, so that he has never been and is not now in a position to cancel the bond for deed contract.

The contract calls for monthly payments of $72.00, to satisfy a debt of $11,-500.00 together with interest at the rate of eight per cent per annum. We compute the annual interest to be $920.00, whereas the payments provided for in the contract total only $864.00 per year. At that rate, Mr. and Mrs. Gaude could never pay off the "contract according to its terms. Since the contract obviously contemplates that the purchasers would eventually take title thereto, we think it clear that they are entitled to an accounting and to have the title transferred to them upon the payment of the balance due.

The judgment signed in the court below is ambiguous, and contradictory, in that it recognizes plaintiffs’ title to the property and then orders the defendant to transfer same; and fixes the price of the transfer and then orders an accounting. However, we believe that the trial judge intended that the defendant compute the amount presently due under the contract after allowing credit for all payments made, and that, upon payment of that amount to him by plaintiffs, he transfer title to the 20-acre tract to them.

Accordingly, as above interpreted, the judgment appealed from is affirmed, at defendant’s cost.

AFFIRMED.


text:
    Emmet F. BRELAND, Plaintiff-Appellee, v. Governor Edwin W. EDWARDS et al., Defendants-Appellants.
    No. 12068.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Ray W. Breland, Jr., Bogalusa, and M. Reggie Simmons, Franklinton, for plaintiff-appellee.
    Tommy D. Teague, Baton Rouge, and France W. Watts, III, of Watts & Cassidy, Franklinton, for defendants-appellants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This matter is before us on Emmet F. Breland’s (Breland) motion to dismiss defendants’ appeal from a judgment of the district court granting a preliminary injunction. We grant the motion and dismiss the appeal.

The facts leading up to the instant issue are not in dispute. On November 18, 1977, the Honorable Edwin W. Edwards, Governor, issued a proclamation directing that a special election be held in the City of Boga-lusa on Tuesday, January 24, 1978, for the purpose of determining whether Breland should not be recalled as a member of the Bogalusa City School Board.

Breland filed suit on November 23, 1977, alleging the nullity of the Governor’s proclamation, based on the failure of the certificate of the Secretary of State to adhere to the requirements of R.S. 42:347. Named as defendants were the appropriate state and parish officers. In his suit, Breland sought (1) a preliminary injunction prohibiting the election as called, (2) a permanent injunction in the form and substance of the preliminary injunction, and (3) a judgment de-daring the Governor’s proclamation of November 18, 1977, null and void.

A hearing on the rule for a preliminary injunction was held on December 16, 1977, and on that date the matter was taken under advisement by the trial court. The trial judge, with written reasons assigned, rendered judgment on January 6, 1978, granting the preliminary injunction. Judgment in conformity therewith was signed on January 10, 1978. On January 17, 1978, the trial judge declined defendants’ request for a suspensive appeal.

The defendants then applied to this court for supervisory writs in an attempt to have the election held as scheduled. However, their application was not filed with us until January 26, 1978. In refusing the writ we stated:

“In the procedural posture that this case is presented to us the question is moot. The writ application was not filed with this court until two days after the date upon which the election had been set. There is therefore adequate remedy by appeal.”

On January 30, 1978, defendants obtained an order from the trial judge granting them a devolutive appeal. Breland’s motion to dismiss followed.

C.C.P. .Art. 3612, in pertinent part, provides:

* * * * * *
“An appeal from an order or judgment relating to a preliminary injunction must be- taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.”
* * * * * *
Breland contends that the defendants’ appeal should be dismissed not only because it was not perfected within the fifteen day period required under C.C.P. Art. 3612, above, but also because Act 473 of 1977 (which amended R.S. 42:342) has rendered the Governor’s proclamation null and the issue is now moot.

Defendants argue that the judgment signed on January 10, 1977, in addition to granting the preliminary injunction, granted the declaratory judgment prayed for by plaintiff. Accordingly, they contend that insofar as the declaratory aspect of the judgment is concerned it is a final decree (C.C.P. Art. 1871), thus permitting a devolutive appeal within the customary sixty day period. They cite as their authority the case of Consolidated Credit Corporation of Baton Rouge v. Hannah Forkner, 213 So.2d 101 (La.App. 1st Cir. 1968). We find the cited case clearly distinguishable from the facts in the instant matter. Further, we pretermit any consideration as to the issue of mootness and address ourselves only to the question of the timeliness of defendants’ appeal.

At the outset we note that the record makes the procedural posture of the case abundantly clear. The matter was before the court on Breland’s, rule for a preliminary injunction. Any effort to consider other matters germane to the merits was timely objected to. While the trial judge, in his written reasons, did conclude that the certificate of the Secretary of State did not comply with the requirements of R.S. 42:347, this conclusion must be viewed in the light of the interlocutory nature of the proceedings. The same is true with respect to those portions of the signed judgment which import finality. A hearing on the rule nisi for a preliminary injunction cannot, absent a stipulation to the contrary, be considered as a trial on the merits.

This court in Baton Rouge Cigarette Service v. Bloomenstiel, 88 So.2d 742 (1956) recognized the difference between a hearing on a preliminary injunction and a hearing on the merits. We noted, inter alia, the different delays involved, the different types of pleadings, and particularly, the difference in the burden of proof. See Kellogg v. Hall, 159 So.2d 596 (La.App. 2d Cir. 1964) and Ritchey v. Desser, 199 So.2d 427 (La.App. 3d Cir. 1967).

The case relied upon by appellants (Consolidated Credit Corporation of Baton Rouge v. Hannah Forkner, above) is not authority for the proposition now advanced by them. In that case the court found that the declaratory judgment therein rendered and appealed followed a hearing on the merits.

Defendants are not prejudiced by the dismissal of their present appeal. Following a hearing on the merits and assuming that the judgment is still adverse to their contentions, they still have a right to an appeal. Kellogg v. Hall, above.

For the above reasons, plaintiff’s motion is granted and defendants’ appeal is dismissed. All costs incidental to this appeal as are permitted by law are assessed against the defendants with the assessment of all other costs to await a final determination on the merits.

MOTION GRANTED, APPEAL DISMISSED.


author: GULOTTA, Judge.

text:
    REGENCY ELECTRIC, INC. v. Wade T. VERGES.
    No. 8551.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Richard A. Najolia, New Orleans, for plaintiff-appellee.
    Hecker & Orrill, R. Ray Orrill, Jr., New Orleans, for defendant-third-party defendant-appellant.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Defendant, a contractor and owner of a professional office building, appeals from a judgment in favor of a subcontractor in the sum of $3,262.81.

Plaintiff contracted with defendant to do the electrical work on the office building located on Morrison Road and also property located at 7040-42 Bundy Road. Defendant withheld payment of the sum of $1,547.81 because of damage allegedly done to the floor in one of the office suites in the Morrison Road property in which plaintiff had performed electrical work. Defendant also withheld payment of $1,715.00, claiming that this amount represented extra work agreed upon between the subcontractor and tenants in the office suites. According to defendant, if this amount is owed, it is the responsibility of the tenants who contracted directly with plaintiff. Also in dispute is the additional sum of $640.00 which defendant withheld from payment to plaintiff because of defective work performed by plaintiff on the Bundy Road property.

The trial judge rendered judgment originally in the sum of $3,902.81, however, after granting a partial new trial the judgment was reduced by the sum of $640.00 to the sum of $3,262.81. It is from this judgment that defendant appeals. Plaintiff answers the appeal and seeks reinstatement of the judgment in the original amount.

In addition to seeking exoneration from the judgment in favor of plaintiff, defendant claims the trial judge erred in failing to award an expert’s fee to defendant’s expert witness.

Defendant claims error on the part of the trial judge in 1) awarding a judgment against him individually when the contracts were made between plaintiff and BMV & Associates, Inc. through Wade Verges in his capacity as a corporate officer; 2) failing to recognize the validity and to give effect to a release by plaintiff in favor of defendant individually and the corporation for any claims which plaintiff may have for work performed at the Morrison Road property; 3) failing to find that the damage caused to the floor in one of the suites of the Morrison Road property was caused by an employee of plaintiff; 4) failing to find the $1,715.00 indebtedness for electrical work is the responsibility of the tenants and not defendant individually or BMV & Associates, Inc., owner of the building.

JUDGMENT AGAINST DEFENDANT INDIVIDUALLY

Well established is the rule that one who claims he is acting in a corporate capacity has the duty to disclose that he is contracting as an agent of the corporation and not as an individual. In such cases, the burden of proof of showing disclosure is placed on one claiming the agent relationship. See American Rent All, Inc. v. Culotta, 328 So.2d 743 (La.App. 4th Cir. 1976) and H. B. “Buster” Hughes, Inc. v. Bernard, 306 So.2d 785 (La.App. 4th Cir. 1975), affirmed, 318 So.2d 9 (La.1975).

In connection with the evidence relating to disclosure, Irish H. Jones, manager of Regency Electric, Inc., testified that he was not aware that Verges was an officer of the BMV corporation. He recognized that defendant was connected with BMV & Associates, but did not know of the corporate status. According to Jones, he dealt with Verges individually. Jones further testified that at no time had he been advised that the work was being done for a corporation. He assumed that BMV & Associates was a trade name. Jones also stated that he had presented the bids to Verges and that Verges had signed them.

Significantly, letters and communications sent by Regency Electric were addressed to “BMV & Associates”. These letters which constituted agreements between the parties were approved by “BMV & Associates” and were signed by Wade T. Verges. No corporate representation appeared under the signature of Verges. Further invoices from Regency Electric were addressed to “BMV & Associates” and not to the corporation. Also strongly persuasive that defendant was acting in his individual capacity is the release, relied on by defendant, which is from Wade T. Verges and “BMV & Associates” (and another party) and is not in the corporate name.

Although Verges testified that Jones had dealt with him as an officer of the corporation, he acknowledged that his signature was not identified by his corporate capacity. We find significant also that although Verges testified all bills had been paid from checks drawn on a corporate account, no corporate checks were introduced into evidence. Verges did testify, however, that he had attempted to subpoena the corporate records but was unsuccessful. With the exception of an estimate from an electrical contractor for repairs to the Bundy Road property and a lease executed between the corporation and a tenant in the Morrison Road property, no other documentary evidence was offered to support defendant’s claim that the contracts with Regency were executed with the corporation. Even invoices from another electrical contractor who did electrical work on the Bundy property were invoiced to “W. T. Verges”.

The record supports the trial court’s conclusion awarding judgment against defendant Verges individually. Defendant simply failed to carry the burden of showing that he disclosed to plaintiff he was acting in his corporate capacity.

RELEASE

We find no merit to defendant’s argument that the receipt and release executed by Regency in favor of Verges and BMV & Associates is an exoneration of the claims made by plaintiff. The document, as pointed out by defendant, states that Regency Electric and Jones release defendant Verges and “BMV Associates” from any claims against them for work performed on the Morrison Road building. However, in the following paragraph, the release states:

“This release and receipt in no way alters the right of Irish Harrison Jones or Regency Electric, Inc., who may claim and collect for work performed for certain individuals at the above described premises, more particularly but not exclusively Dr. Benny Parent, Dr. David Spizer, Dr. Denny Booth and Dr. Murphy St. Romain.”

The release makes the recognition that $1,547.81 is being withheld by Verges in connection with a claim for damage to a tenant’s suite alleged to have been caused by employees of Regency.

The very wording of the release has the effect of reserving to Regency the right to claim and collect for the extra work performed for the tenant and of recognizing the existence of a disputed damage claim. These claims form the basis of plaintiff’s suit for recovery for work performed on the Morrison Road property. Under the circumstances, we conclude, apparently as the trial judge did, the receipt and release document does not estop plaintiff from asserting the claims made in the instant suit.

PROOF OF DAMAGED FLOOR

The total award included the withheld disputed amount, $1,547.81, because of defendant’s claim that the floor was damaged by a Regency employee. The sum and substance of defendant’s evidence regarding this aspect of plaintiff’s claim is that a tenant told defendant that the damage to the floor had been caused by a Regency worker and that Verges had paid for the repair of the floor. Two Regency employees, on the other hand, testified that they had worked in the area where the floor was allegedly damaged (cigarette burns); that they had not caused damage .to the floor; and that carpenters, air conditioning men and other tradesmen had been working in the same area. Under the circumstances, we conclude the trial judge did not err in his award to plaintiff of this disputed amount.

AWARD FOR EXTRA WORK

The remaining part of plaintiff’s award is the sum of $1,715.00 for work performed on suites in the Morrison building leased to tenants. Although no written reasons were assigned by the trial judge, little if any credibility was placed on defendant’s testimony that Regency had contracted directly with the tenants for this extra work. Jones testified that a change order involving this extra work had been signed "by a Verges employee and a second change order had been initialled by Verges. Indeed, the exhibits support the testimony of Jones. Furthermore, the doctors for whom this work was being done stated that the arrangements for the extra work had been made with Verges; that they had not dealt with Regency Electric and that Verges had indicated that he would pay the bill and the doctors could pay him. These tenants testified Verges had been in fact paid by them for this extra work. Jones testified that Verges, however, had not paid Regency Electric. The trial judge obviously made a credibility call and the evidence supports his conclusion.

DEFECTIVE WORK CLAIM

The trial judge, after hearing on partial new trial, reduced plaintiff’s award by the sum of $640.00. Defendant claimed the electrical work on the Bundy Road property was defective. The testimony of two electrical contractors was that improper connections of aluminum wiring caused damage requiring replacement of wiring from meters to main panels; that improperly installed receptacles had to be replaced and that loose connections and switches had to be repaired. Paid invoices from one contractor for repairs resulting from Regency’s defective work on the Bundy Road property amounted to $335.00. The second electrical contractor billed Verges $280.90 for other work performed on the Bundy Road property and indicated that the total additional cost would amount to $375.00. Under the circumstances, we conclude the trial judge did not err in awarding defendant a credit for the defective work repairs.

EXPERT’S FEE

We conclude, however, the trial court erred in not awarding an expert’s fee to Joe Algero, one of the electricians who performed repairs on the Bundy Road property. The court stated it would not recognize Algero as an expert although it recognized that he could testify to the extent of his expertise in doing electrical work. In the judgment on the motion for new trial, however, the court awarded a $50.00 expert fee to Charles H. Juan and taxed this as a cost against Regency Electric. Juan’s qualifications and expert testimony were not substantially different from that of Algero.

We recognize that the determination of the qualifications and competency of an expert is discretionary. Catalanotto v. Hebert, 347 So.2d 301 (La.App. 4th Cir. 1977); Carvell v. Winn, 154 So.2d 788 (La.App. 3d Cir. 1963). However, because the record discloses little if any substantial difference in the qualifications and testimony of the two witnesses, consistency requires that either both or neither be paid. Both witnesses testified they had worked on the property and both gave opinion evidence. Because an expert fee was awarded to Juan, we deem an award to Algero in the same amount is proper.

Accordingly, the judgment is amended to award a $50.00 expert fee to Joe Algero to be taxed as costs to Regency Electric. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The trial judge overruled Verges’s exception of non-joinder of an indispensable party (the corporation).

      . An expert witness who gives opinion testimony in addition to factual testimony is entitled to an expert’s fee. Rooker v. Checker Cab Company of New Orleans, Inc., 145 So.2d 631 (La.App. 4th Cir. 1962); Sacco v. Laviolette, 280 So.2d 636 (La.App. 4th Cir. 1973).


author: BOUTALL, Judge.

text:
    Charles J. MENARD v. Nancy Bailey PINSON.
    No. 9081.
    Court of Appeal of Louisiana, Fourth Circuit:
    June 13, 1978.

      Roger M. Evans, New Orleans, for Charles J. Menard, plaintiff-appellant.
    Roos & Roos, Leo S. Roos, New Orleans, for Nancy Bailey Pinson, defendant-appel-lee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment recalling and annulling a writ of sequestration arising out of a lessor’s privilege.

Charles J. Menard leased to Nancy Pinson an apartment for a term ending June 30, 1977, with monthly rental payable in advance. The rent was current in January 1977. On January 19, Menard filed a petition for writ of sequestration against Pin-son alleging that on January 11, Pinson informed him that she intended to abandon the leased premises in January without paying the rent for the unexpired term, some 5 additional months. Sequestration was issued accordingly under C.C.P. Article 3572, and Pinson, after giving bond, filed a motion to dissolve sequestration. After hearing, the trial judge recalled and annulled the writ.

It is a prerequisite to the issuance of a writ of sequestration that proper grounds be alleged and sworn to. The writ may only properly issue when the nature of the claim and the grounds relied on clearly appear from specific facts shown by the petition or affidavit. Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (La.1970); Wright v. Hughes, 254 So.2d 293 (La.App. 4th Cir. 1971); C.C.P. Article 3501. Based upon the allegations of the petition herein, the trial judge properly issued the writ of sequestration.

However at the trial of the motion to dissolve, it is apparent that the trial judge did not find the facts alleged to be correct, and hence the lessor did not demonstrate good reason to believe that the lessee would remove the property subject to the privilege. C.C.P. Article 3572. Although the lessor testified that Pinson had told him she was to abandon the premises, Pinson testified that she did not intend to abandon the premises, but intended to shoulder her obligations and was in the process of negotiating for a resolution of the dispute between them. We note that Pinson had been a tenant of Menard for more than 5 years, and had always paid her rent promptly and had never caused any problems during this relationship. She testified that she intended to be married shortly and her future husband had acquired a matrimonial domicile to which they intended to move. She testified that she proposed that she would pay the rent for the forthcoming month of February and in addition offered the substantial damage deposit for release from the last five months of the lease. Through a series of unfortunate instances, communications between the parties broke down, and negotiations were never completed. It is pertinent to note that Menard had authorized an attorney to grant Pinson several days in which to settle the matter, and that this suit was filed prior to the expiration of that deadline. Considering all of these facts, the trial judge decided that Menard had filed his petition prematurely and dismissed the sequestration.

We agree. It is apparent that the issue comes down to the matter of credibility of Menard and Pinson and that the trial judge chose the credibility of Pinson. The undisputed facts in the record, as well as the long relationship of landlord-tenant between these parties convince us that this credibility call was correct.

We affirm the dissolution of the writ of sequestration. See Wright v. Hughes, supra. Appellant is to pay all costs of these proceedings to date.

AFFIRMED.

LEMMON, Judge, concurs and assigns reasons.

When the writ of sequestration was issued, the lessee admittedly had been removing property subject to the lessor’s privilege from the premises, and the lessor had seen her doing so. Thus, the record amply demonstrates that the lessor had “good reason to believe that the lessee will remove the property subject to the lessor’s privilege” and was clearly entitled to a sequestration under C.C.P. art. 3572. However, the lessor failed to allege this specific fact in his petition.

C.C.P. art. 3501 requires that the grounds relied upon for issuance of a writ of sequestration must “clearly appear from specific facts shown by the petition”. Here, the petition did not allege specific facts constituting the grounds for sequestration, but merely stated the conclusion drawn from the unalleged facts. At trial of the motion to dissolve, these facts were established by evidence presented without objection.

Thus, while the writ was improvidently issued based on the petition, the lessor was actually entitled to sequestration at the time. I would vote to maintain the sequestration under these circumstances, except for the Hancock Bank case, which required that proper grounds be alleged and sworn to, regardless of the existence of valid and sufficient grounds not alleged but later shown by evidence presented without objection.

I basically believe the Hancock Bank ease was decided incorrectly, because evidence admitted without objection implicitly amends the pleadings and cures the deficiency. The right to conservatory writs should be decided on the actual facts bearing on that right and not on preciseness of pleadings.

Nevertheless, evidence showing the lessor actually had proper grounds which he did not allege is also relevant to the issue of damages demanded in the motion to dissolve, because this evidence shows that the lessor was actually entitled to take the action that he did, and damages should be awarded only if a lessor obtains a sequestration when he is not entitled to take that action. See per curiam comment on application for rehearing in Wright v. Hughes, above. Thus, even if the sequestration in the present case was correctly dissolved under the Hancock Bank rationale, the lessee should not be entitled to damages in that pending phase of the litigation. The only penalty for the lessor’s obtaining the sequestration should be imposition of the costs of the suit, a penalty applicable because the rent was paid when it became due. C.C.P. art. 3572.

      . The petition contained only the following allegations as to grounds for sequestration:
      “HI.
      “On January 11, 1977 defendant informed petitioner that she intended to abandon the leased premises in January, 1977 without paying the rent for the unexpired term of the lease amounting to One Thousand Fifty and no/100 ($1,050.00) Dollars.
      “IV.
      “Plaintiff has a lessor’s privilege on all of the movables in the leased premises to secure plaintiffs claim for rent. All of these movables are in the possession of the defendant; and it is within defendant’s power to, and plaintiff has good reason to believe that she will, conceal, dispose of, or remove these movables from the Parish during the pendency of the suit. * * ” (Emphasis supplied)


author: GARSAUD, Judge.

text:
    BANK OF LOUISIANA v. James F. NASH, Sr. a/k/a J. F. Nash, Sr.
    No. 9213.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    David D. Duggins, New Orleans, for plaintiff-appellee.
    Frank S. Bruno, New Orleans, for defendant-appellant.
    Before SCHOTT, BEER and GARSAUD, JJ.
   GARSAUD, Judge.

This is an appeal from a decision of the trial court which held that certain machinist’s tools belonging to defendant-appellant were not exempt from seizure as tools of his trade pursuant to R.S. 13:3881(2). The trial court was of the opinion that defendant had retired from the machinist’s trade and that the tools were not used to earn a livelihood.

Plaintiff had sued defendant originally for $1,359.15, the major portion of which represented an amount owed on defendant’s Mastercharge credit card account. A default judgment was entered against defendant and a writ of fieri facias was issued to have defendant’s assets seized to satisfy the judgment. After the seizure, on a rule to show cause, defendant’s claim that the seized tools were tools of his machinist’s trade was denied. This appeal followed.

The record is noticeably devoid of evidence addressed to this point. What evidence there is, however, does support the trial court’s finding.

Defendant Nash, now over 62 years of age, last worked as a machinist in August of 1975. He maintains that as a result of illness, he has been unable to pursue his occupation as a machinist. Over the last three years, he has earned about fifteen dollars in toto on two small jobs using his tools and has received storage space rent-free from his landlord by doing odd jobs for him. The use of the storage space is worth about five dollars a month. His major sources of income are a military disability payment and Social Security benefits, which together amount to between five hundred and six hundred dollars a month.

Although it is well settled that temporary non-use of tools creates no presumption against the owner, Skelley v. Accounts Supervision Co., 53 So.2d 520 (La.App.2d Cir. 1951), and Lafourche Ice & Shrimp Co. v. Gilbeau, 185 So. 310 (La.App.1st Cir. 1938), nevertheless in this case the principle is simply not applicable because, other than defendant’s own articulated hope, the evidence does not support any reasonable inference that the tools will be used again in the machinist trade. This is the conclusion of the trial court and we find no manifest error in his finding. Accordingly, we affirm. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

AFFIRMED.


author: BEER, Judge. SCHOTT, Judge,

text:
    Ernestine WATSON and Ida Mae Honor v. Thomas BECHTEL and Bourgeois and Duke Realtors & Insurance, Inc.
    No. 9217.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Emile L. Turner, Jr., New Orleans, for defendants-appellants.
    Darleen M. Jacobs, New Orleans, for plaintiffs-appellees.
    Before SCHOTT, BEER and GARSAUD, JJ.
   BEER, Judge.

Ida Mae Honor was injured in a fall which occurred as she departed following a visit to her sister’s house. She was exiting the premises via precast concrete steps which had been vertically split, leaving a gap of three or four inches. This split had existed for at least a year and had, of a certainty, been observed by Ida Mae since she was a frequent and regular visitor. But on this occasion, the split apparently widened as she made use of the steps, and she felt her foot “sink” into the crevice. Her leg went down into the gap, and she lost her balance and fell to the sidewalk.

In Wilson v. Virgademo, 258 So.2d 572, 575 (La.App. 4th Cir. 1972), we quoted with approval the rule stated in Redd v. Sokoloski, 2 So.2d 266, 268 (La.App. 2nd Cir. 1941), as follows:

“ * * (W)e understand the rule to be that where a tenant has knowledge of the generally defective condition of a portion of the rented premises, but it reasonably appeals that he might safely use it with the exercise of care, his use in such manner does not constitute contributory negligence that would bar his recovery in an action for damages resulting from the defects. If, however, he was aware of the defect causing the injury and it was such as to indicate to a reasonable-minded person that use of the defective portion was apparently and imminently dangerous, recovery is not permitted.’ ”

In Wilson, supra, the controlling facts were similar (even though the plaintiff was the tenant) in that the defective condition had existed since Mrs. Wilson moved in, and she was well aware of its danger as she had previously fallen from the step. We observed:

“An application of the facts of this case to the above-quoted rule leads us to the conclusion that Mrs. Wilson’s continued use of the steps despite her knowledge of their condition was not so unreasonable as to bar her recovery in this action for damages. While the defect was admittedly obvious we do not find it was so ‘apparently and imminently dangerous’ that she might not safely use it with the exercise of care. Nor does the fact that this accident occurred ipso facto render her use of the steps unreasonable under the circumstances. Were this the case the rule would be rendered totally meaningless. Id., at 575.”

Here, there is evidence to support the factual conclusion that the crack actually widened during the critical moment when Ida Mae was using the stairs and, therefore, fell into greater and more dangerous ruin when being used in the same way as they had been used on the many previous occasions of Ida Mae’s visits.

Sixteen-year-old Ida Mae’s injuries consisted of bruises and brush burns on her side and arms, and a laceration and bruise in the area of her right eye which caused swelling of the right side of her face. She was brought to Charity Hospital where drops were administered to her eye, but not much else was done on this or her two subsequent visits. Her mother treated the area of her facial injury for about one month by placing ice packs around the area of swelling. Her arm and side healed in about one week.

Prior to trial and at the suggestion of her attorney, Honor was examined by Dr. Robert Azar, who found no loss of visual function, but did find evidence of a “moderately severe trauma to the right eye” and noted “a large pigmented area beneath the right lower eyelid compatible with the trauma she allegedly sustained in an accident of April 16, 1975.” He goes on to observe:

“In summary, Ida Mae Honor demonstrates evidence of moderately severe trauma to the right eye that has produced an appreciable facial cosmetic defect. There is no measurable loss of visual function at this time but the eyelid pigmentation appears to be permanent.”

The trial court is vested with much discretion in determining quantum, Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), and we do not find the award of $2,250 to be excessive.

Able counsel for Thomas Bechtel, Bourgeois and Duke Realtors & Insurance, Inc. and Cherokee Insurance Company contend that the record contains no evidence to sustain the trial court’s inclusion of Bourgeois and Duke in the judgment in Honor’s favor. We agree. Bourgeois and Duke collected the rent for Bechtel, who took care (or should have taken care) of repairs to the premises. There is no showing that Bourgeois and Duke had knowledge of the defective stairs. A man named LeBlanc was on their payroll and had the job of collecting the rent which was then sent by Bourgeois and Duke to Bechtel.

While proof of a failure to notify Bechtel of the defective condition of the stairs on the part of Bourgeois and Duke and/or their employee could, properly, form a basis for liability on their part, no evidence was adduced in this respect, and we do not find liability by implication in the absence of any affirmative evidence.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended so as to dismiss plaintiff-appellee’s claim against Bourgeois and Duke Realtors and Insurance, Inc. at plaintiff’s cost and is, in all other respects, affirmed. Appellants Thomas Bechtel and Cherokee Insurance Company are to pay the costs of this appeal.

AMENDED AND AFFIRMED.

SCHOTT, Judge,

concurring.

I agree with the majority opinion, but on the issue of liability I do not believe that Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir. 1972) is applicable. That case involved the application of LSA-C.C. Art. 2695 to an injury suffered by a tenant as a result of a defect in the leased premises. This article and the case do not have any application to our facts which involve the injury of a visitor or invitee to the premises. However, liability is clear under C.C. Art. 2315 or Art. 2317 as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975). In either case defendants could avoid liability by proving contributory negligence on the part of plaintiff or as stated in the Loescher ease that the damage was caused by the fault of the victim. However, there is evidence to support the trial judge’s conclusion that there was no fault on the part of plaintiff because the crack in the steps widened as she made use of the steps, so that she may have been aware of some defect but not a defect which would have been sufficient to cause her injury.