author: HEARD, Judge. BOLIN, Judge.

text:
    James B. DAVIS, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellees.
    No. 12760.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.
    On Rehearing March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writs Refused April 30, June 11, 1976.

      Glen H. Smith, James L. Fortson by James L. Fortson, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and HEARD, JJ.
   HEARD, Judge.

This case, before us for the second time, presents only the issue of correctness of the district judge’s order denying plaintiff penalties and attorney’s fees against the insurer. The issues of liability, the amount of damage, and the proper parties have already been determined in favor of plaintiff. The facts and circumstances of the suit were stated in our previous decree rendered April 23, 1974, in which we ordered the suit remanded for further proceedings. See Davis v. Aetna Casualty and Surety Company, 293 So.2d 906 (La. App.2d Cir. 1974).

We shall reiterate only the chronology of the facts necessary to a determination of whether defendants’ actions were arbitrary and capricious in refusing to make payment under its flood insurance policy within the 60-day period required by Louisiana Revised Statutes 22:658. That act provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.” (Emphasis supplied)

The policy of flood insurance upon which this claim was based was purchased by James Davis on May 23, 1973. Said policy was issued on a National Flood Insurers Association policy form, with Aetna Casualty & Surety Company named as the servicing company. On July 7, 1973, plaintiff’s premises were damaged by flood and he timely furnished defendants with sufficient proof of loss. On September 11, 1973, National Flood Insurers Association issued its draft for $5,924.08 payable to James B. Davis and Blaylock Investment Corporation.

On October 9, 1973, less than a month after receipt of the check, Davis notified defendants by letter that he refused to accept the check as written, and demanded that a new check be issued to him individually. This demand was based on his stated contention that since the flood insurance policy contained the letters “N/A” in the space reserved for the mortgagee’s name, if applicable, Blaylock Investment Company should not have been made a co-payee on the check. This letter further advised defendants that plaintiff did not consider the check to be a proper tender of payment under the terms of the policy; that if the check was not rewritten payable to James B. Davis only, omitting Blaylock Investment Corporation as a payee, suit would be filed immediately asking for penalties, interest and attorney’s fees.

This request was either ignored or refused and plaintiff filed suit December 17, 1973, more than six months after the flood. On January 3, 1974, defendants moved for summary judgment in response to which plaintiff filed an opposition, attaching thereto two affidavits. The first affidavit was signed by plaintiff and was to the effect that the subject policy was not the policy required by the lending agency which financed his home; that he was only required to obtain the homeowners policy which names Blaylock as mortgagee in the loss payable clause, the premiums for that policy were paid through an escrow account set up by Blaylock; further, that subject policy was paid for solely by plaintiff and it contained the letters “N/A” in the space provided for naming the mortgagee, if any. The second affidavit was made by the agent, or broker, who had signed the subject policy, and reiterated the information contained in the first affidavit.

The trial court rendered judgment on the motion for summary judgment in favor of defendants, denying penalties and attorney’s fees, and ordered plaintiff to make Blaylock Investment Company a party to the suit within ten days, failing which the motion for summary judgment would be sustained and plaintiff’s suit dismissed as of nonsuit.

Plaintiff applied for writs of certiorari, prohibition and mandamus to this court, which writs were granted and the case was heard and decision was rendered as stated in our previous opinion cited above.

Thereafter, on May 6, 1974, defendants filed an answer to the original petition and a concursus proceeding alleging that Blay-lock Investment Corporation “has formally made demand upon respondents that the proceeds of said policy covering said loss be paid to it, as provided in its mortgage.” Defendants also prayed that Blay-lock Investment Corporation be ordered to appear and assert such claim as it might have to the monies deposited in the registry of the court.

Blaylock answered the concursus May 21, 1974, and for the first time demanded payment to it of the $5,924 deposited in the registry of the court.

May 22, 1974, plaintiff filed a pleading entitled “Dilatory Exceptions of Unauthorized Use of Concursus Proceeding, Prematurity, Failure of Petition to Comply with Formal Requirements, and Improper Join-der of Parties.” In this pleading plaintiff showed that on September 20, 1972, Blay-lock had, by authentic act, assigned the note and mortgage covering plaintiff’s property to the Dime Savings Bank of New York, and thus Blaylock had no interest in the pending litigation.

On October 15, 1974, Blaylock Investment, joined by the Dime Savings Bank of New York, filed a motion and order to dismiss, in which they stated “appearers now desire to withdraw their claim as to the funds and request that their claim and answer to concursus be dismissed with prejudice.”

Plaintiff filed his second motion to withdraw funds from the registry of the court on October 17, 1974, in which he asked for judgment for the funds on deposit and that all his rights to penalties and attorney’s fees be reserved.

November 15, 1974, the court below rendered judgment denying plaintiff’s motion because of the attempted reservation of his right to claim penalties and attorney’s fees. Thereafter, on March 6, 1975, the district judge rendered a judgment reversing his position and stated his opinion as follows:

“It is the opinion of this court that in order to be consistent with the directions from the upper court . . . and in order to avoid payment of penalties and attorney’s fees, the defendant would have to have filed its concursus (if a concursus is to be considered within said directions) either before suit is filed initially, or in answer to the original suit, rather than after the case has gone to the Court of Appeal and back. By filing the concursus proceeding the defendant has perhaps protected itself from double liability, but has not necessarily freed itself from the obligation of liability for penalties and attorney’s fees.
“Defendant insurance company (and this court) misinterpreted its obligations under the policy. Defendant acted at its own risk. Because it misinterpreted the legal effect of its obligations under the policy, and because of the long delay occasioned thereby it is liable for interest, penalties and attorney’s fees.
“Let there be judgment for plaintiff for the proceeds of the policy amounting to $5,924.08, plus 12% penalty amounting to $710.88, plus $3,500.00 attorney’s fees or a total of $10,134.96, with legal interest from judicial demand and all costs of these proceedings.”

Judgment in accordance with the foregoing opinion was rendered March 12, 1975, and on March 14, 1975, Aetna and National moved for a new trial, which was granted. On May 28, 1975, the district judge rendered judgment, again reversed itself, and gave judgment in favor of defendants against plaintiff, rejecting Davis’ demands for penalties and attorney’s fees and casting plaintiff with costs of the concursus and all costs accruing subsequent to the filing thereof on May 6, 1974.

It is from this last judgment plaintiff has appealed. Appellant urges on appeal that the lower court erred in finding that defendants, by filing the concursus proceeding, were relieved from liability for penalties and attorney’s fees for failure to pay plaintiff’s claim, which insurers admitted owing, within 60 days from the date of the receipt of the proof of claim, as provided in La.R.S. 22:658.

Appellee argues the trial court was correct in rejecting plaintiff’s claims for penalties and attorney’s fees for the reason that Blaylock held a mortgage on plaintiff’s property, which mortgage contained a clause providing:

“8. If the property covered hereby, or any part thereof, shall be damaged or destroyed by fire or other hazard against which insurance is held, the amounts due by any insurance company shall, to the extent of the indebtedness then remaining unpaid, be paid to creditor, and, when so paid, may, at its option, be applied to the debt or be used for the repairing or rebuilding of the said property.”

In support of their contention that the flood insurance payment due was subject, under the above clause, to be paid to Blay-lock, the original holder of the mortgage note, appellees cite Wheeler v. Factors’ and Traders’ Insurance Co., 101 U.S. 439, 25 L.Ed. 1055 (1880) and 5 Couch on Insurance 2d Ed. §§ 29:82 and 29:88.

While we are cognizant of the equitable lien theory enunciated in Wheeler and the recitation of the general law of equitable liens in the cited sections of Couch, we nevertheless are bound by the statutory rules with regard to the imposition of penalties and attorney’s fees against an insurer who fails to pay timely an insurance claim after sufficient notice of a loss had been received.

In the instant case defendants received notice of the loss on or before September 11, 1973, when they attempted to make a tender of the full amount of the claim by check made payable to Davis and Blaylock. The letter rejecting this purported tender and returning the draft was dated October 9, 1973. The attempt of defendants’ attorney to obtain the endorsement of Blaylock on the check in January, 1974, did not constitute tender to plaintiff of the amount of the claim. No further effort was made to pay the claim until the concursus was filed on May 6, 1974.

The insurer is charged with knowledge of its policy contents and where the policy is clear and free of ambiguity, it constitutes the law between the parties and must be enforced as written. Louisiana Civil Code Articles 1945 and 1946. The instant policy contains no ambiguities since there is no dispute the letters “N/A” were interpreted by each of the parties to mean “not applicable”. If the insurer was anxious to avoid the possibility of having to pay the claim twice, i.e., to Davis and to Blaylock, some effort should have been made by the insurers to determine whether Blaylock had a valid claim against the funds within the 60-day period following the submission by plaintiff of his proof of loss. We find the record is devoid of evidence of any demand by Blaylock until after the filing of the concursus proceeding in May, 1974, more than nine months after the proof of loss.

In Agency Management Corporation v. Green Acres Realty, Inc., et al, 286 So.2d 465 (La.App.1st Cir. 1973), the court held:

“As heretofore shown, the contract of insurance is strictly a personal contract, and never runs with the property insured. Accordingly it follows that where the mortgagor independently insures his own interest in the mortgaged premises, without reference to any contract with the mortgagee, the proceeds of such insurance in case of destruction of the property belong solely to the mortgagor, freed from any lien or other claim by the mortgagee. This rule obtains even though there may be a stipulation in the mortgage contract providing that the mortgagee may insure and charge the premiums to the mortgagor, to be covered by the security of the mortgage.” Hartford Fire Insurance Co. v. Landreneau, 19 La.App. 280, 140 So. 52 (1st Cir. 1932). (Emphasis added)

Furthermore, in the same case the court peripherally addressed the issue of a concursus proceeding and indicated that for this to relieve an insurer from liability for penalties and attorney’s fees, the con-cursus must be invoked at the time the claim is denied, not later on, or well into the proceedings.

It is apparent Aetna simply misinterpreted the provisions of its own policy and based the refusal to pay on this misinterpretation. Thereafter, defendants’ attorney took a position which would tend to minimize the arbitrary and capricious nature of defendants’ action. In Broussard v. National American Life Insurance Co., 302 So.2d 627, 631 (La.App.3d Cir. 1974), the court said:

“(6) An insurer must take the risk of misinterpreting its policy provisions. When it misinterprets its own contract, this does not necessarily constitute reasonable ground for refusing payments of benefits, and will not automatically relieve the insurer of an assessment of penalties and attorney’s fees. Albert v. Cuna Mutual Insurance Society, 255 So. 2d 170 (La.App.3 Cir. 1971).”

In Walker v. Fidelity Bankers Life Insurance Company, 302 So.2d 397, 399 (La. App.lst Cir. 1974), the court held:

“We find this argument to be sound. The insurance contract, free of ambiguous language, determines the rights and duties of the parties, and must be enforced as it is writtén. LSA CC Arts. 1901, 1905. Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111; Vidrine v. Southern Farm Bureau Cas. Ins. Co., 247 So.2d 660 (La.App.3d Cir. 1971).”

We conclude the actions of defendants in failing to pay the amount of the loss under the insurance policy to plaintiff within 60 days after submission of the necessary proof of loss were arbitrary and capricious within the meaning of La.R.S. 22:658.

In the judgment dated March 12, 1975, later reversed by the trial judge, he awarded $3,500 as attorney’s fees. We find that amount was reasonable for the time and efforts expended by plaintiff’s attorney prior to that time. For the litigation and efforts in the court below and here since that time, we believe an additional amount of $1,500 is reasonable.

For the reasons assigned the judgment of the lower court authorizing plaintiff to withdraw the sum of $5,924.08 on deposit in the registry of the court is affirmed; that portion of the judgment denying penalties and attorney’s fees is reversed and it is now ordered that there be judgment in favor of plaintiff, James B. Davis, and against defendants, Aetna Casualty & Surety Company, Inc., and National Flood Insurers Association, in solido, for 12% penalty on the amount of the loss as damages, amounting to $710.89; it is further ordered that there be judgment in favor of plaintiff and against defendants for $5,000 attorney’s fees, for a total of $5,710.89, together with legal interest from judicial demand until paid, and for all costs of these proceedings.

Before BOLIN, PRICE, HALL, MARVIN and SMITH, JJ.

ON REHEARING

BOLIN, Judge.

On the motion of defendants-appellees, we granted a rehearing to reconsider our original decision awarding plaintiff penalties and attorney fees under Louisiana Revised Statutes 22:658 for defendants’ arbitrary and capricious refusal to pay plaintiff’s claim under a policy of flood insurance within sixty days of receiving the insured’s proof of loss statement.

Defendants’ original application for rehearing specifies this court erred (1) in finding defendants did not make a tender of the amount due under plaintiff’s claim; (2) in holding defendants’ refusal to pay the claim was arbitrary and capricious, entitling plaintiff to statutory penalties and attorney fees; and (3) in awarding greater attorney fees than plaintiff prayed for in his original petition.

By supplemental petition for rehearing defendants attempt to raise for the first time the question of whether Congress has pre-empted the field of regulation by enacting the National Flood Insurance Act, 42 U.S.C.A. § 4001, et seq. If the field is pre-empted, defendants contend the provision in the Louisiana Revised Statutes which allows penalties and attorney fees for the arbitrary refusal of an insurer to pay a claim would not be applicable to this case.

After careful consideration of the first two errors alleged by defendants, we reaffirm our original finding that defendants did not timely pay plaintiff’s claim and that defendants’ failure to do so was arbitrary and capricious.

In connection with the question of federal pre-emption, plaintiff contends this argument cannot be considered because it is an affirmative defense which must be plead in defendants’ answer. Code of Civil Procedure Article 1005. Without passing on plaintiff’s procedural objection, we choose to dispose of this new issue because it could be contended plaintiff has failed to state a cause of action since the federal legislation does not have a provision similar to R.S. 22:658. Although defendants did not file an exception of no cause of action, Code of Civil Procedure Article 927 provides that an appellate court may consider such an exception on its own motion. Assuming for the purpose of argument only that the issue of pre-emption is properly before us, we hold, for the following reasons, that Congress did not pre-empt the field when it enacted the National Flood Insurance Act.

In enacting and amending the National Flood Insurance Act, Congress recognized that the disastrous personal and property losses occasioned by flood were a nationwide problem; that the federal government had spent vast sums of money in disaster relief and flood prevention; that these efforts by the government had not been sufficient to protect against the growing exposure. to future flood losses; and that a program of flood insurance made available at reasonable premium rates would share the risk of flood losses and encourage preventive and protective measures against floods. 42 U.S.C.A. §§ 4001 and 4002.

Among the purposes of the Act were the following: (1) to provide for flood insurance on a nationwide scale at a reasonable cost; (2) to provide for identification of flood-prone areas; (3) to require states or local communities, as a condition of future federal financial assistance, to participate in the flood insurance program and to adopt adequate flood plain ordinances; and (4) to require the purchase of flood insurance by property owners who are being assisted by federal programs or by federally supervised, regulated, or insured agencies or institutions in the acquisition or improvement of land or facilities located or to be located in identified areas having special flood hazards. 42 U.S.C.A. §§ 4001 and 4002.

To achieve these purposes, the Act provides for the creation of a pool of risk-bearing private insurance companies. With the help of federal subsidies, the association of companies would make flood insurance up to certain amounts available at a reasonable premium cost. The Secretary of Housing and Urban Development is given broad authority to prescribe regulations necessary to carry out the purposes of the Act. Claimants under policies issued pursuant to the Act are given access to the federal courts without regard to the amount in controversy for a period of one year following the denial of their claims.

The broad general rule of pre-emption has been stated thusly:

The doctrine of federal preemption stems from the supremacy clause of the Constitution: . . . Under that clause, “[occupation of a legislative ‘field’ by Congress in the exercise of a granted power is a familiar example of its constitutional power to suspend state laws.” . . . When such preemption occurs, any state law is inapplicable to an issue which arises in that “field.” Moreover, “[i]t has long been the rule that exclusion of state action may be implied from the nature of the [Congressional] legislation and the subject matter although express declaration of such result is wanting.”
Meyers v. Beverly Hills Federal Savings & Loan Ass’n, 499 F.2d 1145 (9th Cir., 1974)

In Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973), the court held that certain rules of the New York Stock Exchange, promulgated as self-regulating measures pursuant to Section 6 of the Securities Exchange Act of 1934, and a broker-employee’s pledge to abide by those rules, did not pre-empt avenues of wage relief otherwise available to the employee under the state law of California. In discussing pre-emption, the court stated:

Mr. Justice Brennan has stated:

“The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons— either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 1163, 10 L.Ed. 2d 248 (1963).
In other contexts, pre-emption has been measured by whether the state statute frustrates any part of the purpose of the federal legislation. Colorado Anti-Discrimination Comm’n v. Continental Air Lines, Inc., 372 U.S. 714, 724, 83 S.Ct. 1022, 1027, 10 L.Ed.2d 84 (1963); Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) ; Rice v. Board of Trade, 331 U.S. 247, 253-255, 67 S.Ct. 1160, 1163, 91 L.Ed. 1468 (1947). And only last term Mr. Justice Douglas, in speaking for the Court, observed that while prior cases on pre-emption “are not precise guidelines,” because “each case turns on the peculiarities and special features of the federal regulatory scheme in question,” it is where there is in existence a pervasive and comprehensive scheme of federal regulation that preemption follows in order to fulfill the federal statutory purposes. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638-639, 93 S.Ct. 1854, 1862, 36 L.Ed.2d 547 (1973).

Defendants have called our attention to a ruling on October 10, 1975, by the United States District Court for the Western District of Louisiana, involving the precise issue now before the court, which held R.S. 22:658 was not applicable. The ruling is not a final disposition of the entire case in question and may never be reported. While we attach no particular value as precedent to that court’s ruling, we have considered the argument presented therein and find it to be unpersuasive.

In Edina State Bank v. Mr. Steak, Inc., 487 F.2d 640 (10th Cir., 1973), certiorari denied 419 U.S. 883, 95 S.Ct. 150, 42 L.Ed. 2d 123, the court was presented with a situation analogous to the one now before us. The state statute at issue there imposed a duty on the issuer of stock to show any transfer restrictions conspicuously on the face of the stock certificate. Any restriction not so noted would be ineffective against one without actual knowledge of it. The Securities Act of 1933 did not impose such an obligation. In reversing the district court’s holding that the federal act had pre-empted the field, rendering the state statute ineffective, the court stated:

We cannot agree that the absence of a requirement for a notation of the restriction in the federal statute overrides § 8-204 under the doctrine of preemption. As further discussed below we feel that this important provision of the Code may be read in harmony with the federal statute. Both regulations can be enforced without impairing federal superintendence of the field and thus the state statute need not give way. . . .We feel the Securities Act shows no intent to prevent such significant regulation by state law. . . . We are satisfied the federal statute should not be held to override § 8-204.

We believe the same reasoning applied to our case. Revised Statutes 22:658 does not tend to frustrate the purposes of the Act as declared by Congress. Our statutory provisions provide a penalty for the arbitrary and capricious refusal of certain types of insurers to timely pay valid claims under policies they issue. It does not discriminate between companies. It is designed to protect the insured and to facilitate the prompt settlement of his claims. Our statute may he read in harmony with the Act and does not interfere with the achievement of the Act’s goals.

Nor do we believe Congress intended to bar the application of the type statute involved in this case. The statute does not operate solely against flood insurers, nor does it deal with the substantive area of flood insurance. Rather, it concerns itself with a peripheral area involving prompt settlement of claims. Moreover, the federal act basically deals with the organization of the national program and the relationship between the government and the insurance companies making up the pool while our statute deals with the relationship of the insured and the insurer.

Accordingly, we hold that Congress did not pre-empt the field of regulation in enacting the National Flood Insurance Act so as to preclude the application of R.S. 22:658.

The remaining issue is whether we may award plaintiff attorney fees of $5000 when he only prayed for $2500 in attorney fees in the event the case was appealed.

Defendants contend a party may not be awarded more attorney fees than he prayed for in his petition. Plaintiff argues that Code of Civil Procedure Articles 862 and 2164 vest this court with the power to award attorney fees in an amount it finds to be proper and just regardless of the amount he prayed for in his petition.

We disagree with plaintiff’s interpretation of these articles of the Code of Civil Procedure. These articles are not controlling in the area of special damages. Article 861 provides items of special damage must be specifically alleged. In this case there was no evidence offered on the amount of attorney fees and, therefore, by the clear and unambiguous language of C. C.P. Art. 861, plaintiff may not recover more attorney fees than he alleged to be due, i. e., $2500.

For the reasons assigned our original decree is amended to reduce the amount awarded as attorney fees from $5,-000 to $2,500. As thus amended our original decree is reinstated.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Jettie REEVES et al., Plaintiffs-Appellees, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 12848.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellants.
    Shuey, Smith & Carlton by J. William Fleming, Shreveport, for plaintiffs-appel-lees.
    Before BOLIN, PRICE and MARVIN, JJ-
   BOLIN, Judge.

Plaintiffs, husband and wife, instituted the present action to recover damages for personal injuries received by Mrs. Reeves, and related special damages due the community caused by a truck colliding with Mrs. Reeves’ automobile on May 15, 1973. It was stipulated the accident was caused by the negligence of the truck driver. From a judgment in solido against the truck driver, his employer, and the liability insurer in favor of Mrs. Reeves for $21,500 and for Mr. Reeves in the amount of $5,-216.95, all defendants appeal. We affirm.

In their brief before this court appellants specify the lower court erred in (1) finding that plaintiff sustained an aggravation of a prior existing back condition; (2) failing to take into consideration Mrs. Reeves’ refusal to undergo surgery in mitigating its award.

Mrs. Reeves had received a back injury in February 1972. For this injury she was examined and treated by Dr. Harold R. Bicknell, an orthopedic surgeon, who suspected she had a herniated disc and recommended a myelogram. A myelogram was performed on Mrs. Reeves following which Dr. Bicknell recommended surgery. However, due to an adverse reaction to the dye used in the myelogram procedure and for personal reasons of her own, she did not agree to the surgery. The lower court found, and we agree, that the difficulty from the 1972 accident had abated prior to the 1973 automobile accident.

The most serious question relates to Mrs. Reeves’ refusal to submit to an operation following the second accident. Dr. Bick-nell, who had treated Mrs. Reeves for the back injury received by her in the first accident, referred her to the Baylor Medical Center in Dallas, Texas, for an elec-tromyograph in October, 1973. This procedure was followed because of Mrs. Reeves’ inability to tolerate a myelogram and also because the electromyograph is a successful procedure for duplicating the capability of the myelogram.

Dr. Bicknell testified "the results of the electromyograph correlated with the findings previously obtained from the myelo-gram in 1972, which caused him to recommend that Mrs. Reeves undergo surgery for a herniated disc. However, he stated the only way he could be certain she had a herniated disc was to perform the operation.

Mrs. Reeves testified she feared having a back operation and therefore refused to consent to such surgery. For her personal injuries the lower court awarded Mrs. Reeves $20,000 for “the pain and suffering she has sustained as a result of this injury to her back” and “an additional $1,500.00 for the bruises and abrasions, to include the blow to the nose, sustained in the accident.”

The amount awarded Mr. Reeves for medical expenses, etc., is not seriously questioned on appeal. The lower court permitted recovery for loss of wages for only 26 weeks based upon the following finding:

As we previously noted, Mrs. Reeves stated that she does not wish to be operated on. The jurisprudence is that if an operation will alleviate the disability, the plaintiff is required to minimize his damages thereby. If the plaintiff does not wish to be operated on, then damages for lost wages may not be allowed beyond the estimated recuperative period. Welch v. Ratts, 235 So.2d 422 (La.App. 2nd Cir., 1970).

Since plaintiffs have neither appealed nor answered the appeal, they cannot question the mitigation of the award for loss of wages for failure of Mrs. Reeves to undergo surgery. However, defendants’ principal thrust on appeal is that the lower court did not mitigate the damages awarded Mrs. Reeves for pain and suffering because of her refusal to submit to surgery.

Our courts have espoused a rule in varying terminology to the effect that an injured party is obligated to submit to reasonable medical treatment, including surgery, to minimize his damages against a tort-feasor. Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216 (1913); Dark v. Brinkman, 136 So.2d 463 (La.App. 3d Cir., 1962); Bowers v. Lumbermens Mutual Casualty Company, 131 So.2d 70 (La.App. 2d Cir., 1961); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir., 1974), writs refused.

As related to an award for pain and suffering, the above rule must be applied with extreme caution. The burden is on a tort-feasor to show to what extent the damages should be mitigated. If an otherwise successful surgical operation would leave an injured party with residual permanent pain and disability, his refusal to undergo surgery should only mitigate the damage award proportionately. In the instant case defendants have not borne this burden of proof.

We conclude Mrs. Reeves’ refusal to undergo surgery for her back condition was only one of several factors to consider in arriving at the proper award for her pain and suffering. Considering this factor along with others, we do not find the trial judge abused his discretion in awarding her $21,500 for her personal injuries.

For the foregoing reasons the judgment is affirmed at appellants’ cost.


author: BLANCHE, Judge.

text:
    William F. LAWLESS v. GULF SOUTH TITLE INSURANCE AGENCY, INC.
    No. 10624.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 15, 1976.
    Writ Refused June 11, 1976.

      Samuel A. Bacot, Baton Rouge, for appellant.
    Ben F. Day, Baton Rouge, for appellee.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is a suit arising out of two purported oral agreements which were incidental to and contemporaneous with the sale of a rental house from plaintiff, William F. Lawless (hereinafter referred to as “Lawless”), to defendant, Gulf South Title Insurance Agency, Inc. (hereinafter referred to as “Gulf”), and the second sale of a home from Gulf to Lawless.

Lawless sued Gulf seeking rescission of the home sale, return of a $1,500 deposit, the cost of repairs he allegedly performed on Gulf’s rental house and the cost of repairs to the newly purchased home of Lawless. Gulf reconvened, seeking the costs incurred to repair the rental house, which repairs Gulf alleges it was forced to make, plus additional expenses incurred in conjunction with the sale and maintenance of the rental house.

Both parties have appealed the judgment of the trial court, which was in favor of Gulf for $1,500, plus all costs and expert witness fees of $50. The judgment in Gulf’s favor is amended and as amended, affirmed.

On January 9, 1974, Lawless sold to Gulf a rental house located on Lots 18 and 20, Square 32, East Garden City, in the Parish of East Baton Rouge, Louisiana, for the recited sum of $16,500 cash.

That same day Gulf sold to Lawless a house located on Lot 185, Iberville Terrace Subdivision, Third Filing, in the Parish of East Baton Rouge, Louisiana, for the sum of $39,900, financed through Standard Mortgage Corporation, on which the loan was guaranteed by the Veterans Administration. This house was to be Lawless’ home.

At the time of the sales, Lawless orally contracted to repair the rental property so that it would meet the standards for the loan guaranteed by the Veterans Administration. To insure that the repairs would be performed according to the agreement, Gulf withheld $1,500 from the price it was to pay Lawless.

Lawless contends that at the same time a second oral agreement was reached whereby Gulf was to remedy certain defects in the Iberville Terrace house.

The terms, and even the very existence, of these oral agreements are not completely clarified by the testimony and evidence presented at trial. However, in an attempt to reconstruct the agreements, we carefully considered both the entire record and the facts found by the trial judge. Our findings are set forth as follows.

Bobby L. Forrest was the president and sole stockholder of Gulf.

On October 23, 1973, after negotiations with realtor Hoyle Buckley and builder Jim Forrest, brother of Bobby Forrest, Lawless signed a purchase agreement to buy the Iberville Terrace property from Gulf, conditioned upon obtaining V.A. approval.

That same day Jim Forrest, acting as the agent of Bobby Forrest, signed a purchase agreement obligating Gulf to buy the described rental property from Lawless.

On November 19, 1973, a Veterans Administration certificate of reasonable value was prepared by a duly authorized inspector listing the value of the Iberville Terrace house as $39,900. Since the house was not completely finished, the certificate was made subject to installation of the air conditioner compressor and window screens, painting exterior wood trim, repairing cook top, repairing holes in sheet-rock, repairing certain light fixtures, and replacing missing light fixtures.

Lawless’ purchase of the house was entirely dependent upon 100 percent Veterans Administration financing since at the time he was financially unable to obtain the down payment required by conventional lenders.

At Gulf’s request on January 4, 1974, a Veterans Administration certificate of reasonable value was also obtained on the rental property indicating a worth of $16,500. Because the house was in a state of disrepair, that appraisal was made subject to replacing all rotted wood on the exterior, painting exterior with two coats of paint, replacing five broken screens, and installing taped, floated, and stippled sheet-rock on all interior ceilings and walls.

Gulf was buying the rental house for resale and required the certificate of reasonable value since, due to the location of the house, V.A. or F.H.A. financing would have probably been the only available method of financing the house to a future purchaser. In effect, Gulf wanted to insure that it could resell the house after it was purchased from Lawless.

The sales were passed on January 9, 1974. At the sale Gulf’s president, Bobby Forrest, demanded that it be allowed to withhold $1,500 from the purchase price of the rental house. It is clear that this money was to insure Gulf that all materials used by Lawless to bring the rental house up to V.A. standards were paid for by Lawless. Gulf was not concerned at that point with the possibility of labor liens, since Lawless was to perform all of the labor personally.

Gulf contends that Lawless agreed to perform the work within thirty days and that $1,500 was to be returned to Lawless upon completion of the repairs if the house was not subj ect to liens.

On the other hand, Lawless contends that he only agreed to do the work within a reasonable time, not necessarily in thirty days as contended by Gulf. Lawless also asserts that he was not required to pay for the materials out of his own pocket but rather he was to be allowed to draw on the $1,500 to pay the material bills as they accrued. Lawless testified that he was financially unable to purchase the materials and, therefore, would not have entered into an agreement which would not allow him to draw on the $1,500.

Bobby Forrest countered Lawless’ contentions by noting that the repairs could have been performed within a period of one month. He argued that Lawless could have utilized credit to obtain the supplies and could have had the job completed even before the bills for said supplies were due. Thereafter, Lawless could have obtained lien waivers from the suppliers or could have had the defendant issue the checks to pay the bills once they were all in hand.

The record indicates that the first work done by Lawless was in the latter part of March, 1974. This is evidenced by a letter dated May 6 from Lawless to Gulf requesting a draw of $298.95 for materials. The earliest invoice listed therein was from Travis and Sons, Hardware, dated March 28.

At the trial Lawless contended that work commenced in February. However, the only proof offered to substantiate that claim was Lawless’ own uncorroborated testimony. The evidence preponderates that the first attempts to repair the house were in March.

It is obvious from the record that irrespective of whether the agreement was to complete the work in thirty days, as contended by Gulf, or within a reasonable time, as argued by Lawless, both parties contemplated that the work should at least begin before March, which was two months after the sales took place. Therefore, Lawless neither commenced nor completed the repairs within the allotted time. However, he argues that he was excused from performing the work because the house was occupied by tenants.

While it is true that tenants occupied the house after the sale, Lawless had previously served them with a notice of termination of lease and request to vacate. The notice was given on January 7, 1974, two days prior to the sales. This was done so that Gulf could take possession of the premises. On March 22, Lawless sent another notice to the tenants to vacate the property.

At no time during the period in question did Lawless resort to legal measures to force the tenants to vacate, even though he knew he was obligated to repair the house. Furthermore, Lawless was aware that under the terms of the agreement it was his responsibility to evict the tenants.

The tenants were finally evicted by Bobby Forrest’s law firm on April 5, over three months after the date of the sale, on the basis of Lawless’ January 7 notice. In order to avoid further delay, the tenants were evicted in the name of Lawless.

Lawless’ argument that the occupancy of the house excused him from performing any repairs overlooks the fact that he obviously could have at least performed the outside work on the house even though the tenants remained on the premises.

In view of the foregoing, we find that the presence of the tenants on the property was not a valid reason for Lawless to delay accomplishing the required work.

Lawless requested the first and only draw for materials on May 6, 1974. At that time he submitted a request for $298.-95, which was only partially substantiated by invoices. Gulf refused Lawless’ request, and Lawless cites the refusal to grant the draw as an additional excuse for his failure to perform.

As of the date of the request on May 6, the work had not been completed by Lawless, and in the transmittal letter requesting the draw Lawless advised Gulf that “hopefully” he would complete the work by May 20. However, after Gulf’s refusal to grant the draw, Lawless abandoned all attempts to repair the house.

At the trial Bobby Forrest explained that he refused to allow Lawless to draw on the $1,500, not only because it was contrary to their agreement but also because Lawless had resorted to hired labor to repair the house, therefore, subjecting Gulf, as owner, to the possibility of labor liens in addition to material liens.

From the record there can be no doubt but that Lawless contracted to personally perform all of the labor. Lawless acknowledged that because of financial difficulties he had agreed to perform the work himself in order to save the expense of hiring laborers. Therefore, in addition to delaying an unreasonable length of time before commencing the work, the evidence shows that Lawless deviated from the agreement when he hired other laborers to do the work for him.

Lawless contends that the refusal of his demand for the draw on May 6 was a breach of contract by Gulf. However, at that point Lawless had already breached the agreement in two ways, by failing to perform the repairs within a reasonable time and by hiring laborers to do the work.

LSA-C.C. Art. 1931 provides that a breach of contract is passive when what was covenanted to be done was either not done or was not done on time, or when it was done in a manner other than that stipulated in the contract. It, therefore, appears that the above-described actions of Lawless amounted to a passive violation of the subject agreement.

When the thing to be done was not of such a nature that it could only be done within a certain time, damages for a passive breach, as occurred herein, are due only from the time that the debtor has been put in default, LSA-C.C. Art. 1933.

Time was not of the essence in the instant contract and, therefore, damages resulting from Lawless’ breach would be due only from the date Lawless was put in default by Gulf.

Upon realizing that Lawless had deviated substantially from the agreement, Gulf made demand on Lawless on May 15, 1974, to complete the repairs within ten days. We consider that letter as sufficient to place Lawless in default. Accordingly, Gulf is entitled to damages from May 25, 1974, or ten days after the date of the letter.

Concerning the amount of damages, LSA-C.C. Art. 1934 provides that in a case such as this damages due to the creditor are the amount of loss he has sustained and the profit of which he has been deprived. Furthermore, where the debtor is not guilty of fraud or bad faith, as is clearly the case herein, only such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract are owed by the debtor.

There has been no showing that Gulf was deprived of any profit due to the breach of Lawless. However, the record does indicate that Gulf sustained a loss since the repairs were performed at Gulf’s expense after the refusal of Lawless to complete same.

Gulf’s residential builder and cost expert, William E. Day, testified that he supplied materials valued at $1,420 for the repair of the house through his construction corporation.

The labor was performed by Billy Devall, and a check payable to him in the sum of $1,912.93, dated September 25, 1974, drawn on the account of Forrest, Kiefer and Bac-ot, Attorneys at Law, was produced at trial. Both Bobby Forrest and Nelda Edwards, the secretary who prepared the check testified that said check was drawn on Gulf’s account even though the check does not reflect same. Although Devall did not appear at the trial, Day testified that he inspected the job several times and that the amount of the check accurately represented the labor performed by Devall.

In view of the foregoing, we are of the opinion that Gulf has proved by a preponderance of the evidence that it suffered losses of $1,420 for materials and $1,912.93 for labor.

Gulf also seeks recovery of $989.19, representing the total amount for nine can-celled checks in the sum of $109.91 each, payable to Union Federal Savings & Loan Association and dated February through October, 1974. These checks represented payments on the mortgage that Gulf assumed as part of the purchase price. Gulf seeks payment of all nine checks on the theory that it would not have been obligated to pay said notes if Lawless had timely completed the repairs.

There is no evidence to show that the failure of Lawless to repair the property as per his agreement' delayed the sale of the property or caused Gulf to make any additional payments on the mortgage for that reason. Furthermore, after Gulf placed Lawless in default, Gulf spent at least four or five months performing the repairs which it expected Lawless to make in one month.

Gulf also seeks recovery of $650.15 which was paid to Edwins Flooring, Inc., to repair the floor in the house. That item of repair was not listed on the Veterans Administration certificate of value and, therefore, Lawless was not required to perform the work. Since those repairs were not the responsibility of Lawless, Gulf is precluded from recovering therefor.

In its reconventional demand, Gulf sought 11 percent interest on the sum of $7,000. No evidence was presented at the trial to substantiate that loss and it is, therefore, rejected.

There is evidence that some work was performed on behalf of Lawless prior to commencement of work by Gulf. However, the record is not clear concerning how much, if any, of Lawless’ work was incorporated into the subsequent repairs performed by Gulf. The plaintiff, accordingly, failed to prove that he is entitled to a monetary credit for that amount of work.

In view of the foregoing, we find that Gulf has proved losses of $1,420 and $1,912.93, or a total of $3,332.93.

The last issue on this appeal concerns Lawless’ allegations that Gulf defaulted on its agreement to repair certain defects in the Iberville Terrace property.

Lawless contends that Gulf agreed to make certain repairs to the house in addition to those required by the Veterans Administration certificate of value. The additional repairs were not made and Lawless seeks damages therefor.

On the other hand, Gulf has contended throughout the trial and also on appeal that the only agreement it entered into with Lawless concerned bringing the Iber-ville Terrace property up to the standard demanded by the Veterans Administration. Gulf points out that the defective items listed on the certificate of value were remedied by it, citing the Veterans Administration compliance inspection report of January 18, 1974, reflecting the notation “Items on C.R.V. complied with.” In the light of this, Gulf concludes that it has fulfilled its obligation under the agreement.

The trial judge did not specifically find that there was an agreement to perform these additional repairs. However, he did find as a fact that all of the defects complained of were apparent at the time of the sale and refused to allow Lawless to recover the cost of repairing them. That finding obviously negates Lawless’ argument that Gulf agreed to repair the additional items. There would be no necessity to inquire as to whether a defect is apparent or not where an agreement existed to make the repairs.

The trial judge was apparently contemplating that even though no agreement existed, Lawless might have an action for redhibition of the sale due to the defects. However, he concluded that the defects were apparent and Lawless could not ' maintain such an action.

The record amply supports a finding that Gulf’s obligation was limited to the defects listed on the certificate. Accordingly, the trial judge’s holding that Lawless was not entitled to recover for the repair of the additional defects will not be disturbed on this appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment of the trial court is amended so as to increase the award to plaintiff in reconvention, Gulf South Title Insurance Agency, Inc., from $1,500 to the sum of $3,332.93 against defendant in reconvention, William F. Lawless. In all other respects the judgment is affirmed. All costs of this appeal are to be borne by defendant in reconvention, William F. Lawless.

AMENDED AND AS AMENDED, AFFIRMED.


text:
    4626 CORPORATION v. Mike MERRIAM.
    No. 10638.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused June 4, 1976.

      E. Drew McKinnis, Baton Rouge, for appellant.
    Gregory B. Adams, Baton Rouge, for appellee.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is an action by plaintiff, 4626 Corporation, the owner and developer of Concord Park, a commercial subdivision located in the Parish of East Baton Rouge at the intersection of Interstate Highway 10 and College Drive, against defendant, Mike Merriam, the owner of Lot 14 of Concord Park, seeking to enjoin Merriam’s violation of certain subdivision restrictions.

The trial court found for the plaintiff, permanently restraining, enjoining and prohibiting the defendant from “continued violation of the subdivision restrictions of record affecting Lot 14, Concord Park, by maintaining a sign on Lot 14 which has not been approved by the Architectural Control Committee.” Defendant was cast with all costs of the proceedings. Both defendant and plaintiff have appealed.

The restrictions involved in this litigation, in pertinent part, provide:

“9) All exterior signs shall be approved by the Architectural Control Committee. Flashing neon, yard signs or general outdoor advertising signs are prohibited.
“10) An Architectural Control Committee composed of James D. Dodds, Chairman, Frank J. Vicari and John C. Moore are hereby appointed. A majority of the committee may designate a representative to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant. In addition, the decision of the Architectural Control Committee in the event of any dispute or controversy involving the interpretation of these restrictions shall be final and non-appeala-ble.
“11) The committee’s approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove, within thirty (30) days after plans and specifications (preliminary or construction) have been submitted to it, in writing, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the relative covenants shall be deemed to have been fully complied with.” (Record, pp. 11, 12)

The facts giving rise to the instant suit are as follows: Mike Merriam is the owner and operator of “Del Lago,” a restaurant and nightclub situated entirely on Lot 14 of Concord Park Subdivision. The master plan for the subdivision envisions a total of 130 lots. At the date of trial twenty-five lots had been sold, thirteen of which had been developed.

At issue is the neon sign for Merriam’s establishment which advertises pertinent aspects of the business and also carries the name “Del Lago.” The free-standing sign is located on the northeast corner of Lot 14 and is raised by a single metal pole to a point where its top is approximately ten to fifteen feet above the roofline of the building. There is another sign attached to the front wall of the building, but it is not at issue herein.

James D. Dodds, chairman of the architectural control committee for the subdivision, testified that several complaints were received from other lot owners in the subdivision concerning the height of the described sign which is clearly visible from Interstate 10. Dodds noted that Merriam had not submitted the drawings and specifications of the sign to the committee for their approval prior to its erection, even though they had made written request upon him to do so.

The committee agreed with the complaining lot owners that the sign was improper, and on November 27, 1973, the committee wrote a letter to Merriam requesting that Merriam meet with them for the purpose of working out a compromise so that Merriam could salvage part of his investment in the sign. The letter stated that if no compromise were reached, the sign would have to be removed.

The evidence established that the construction of the sign had taken two weeks and that the sign was several months old before the committee notified defendant that there was a problem.

Merriam failed to meet with the committee, and subsequently on January 21, 1974, and again on April 29, 1974, the committee made written demand upon Merriam to remove the sign. Merriam failed to do so and the instant suit ensued. The suit also demanded removal of a temporary advertising sign, which defendant accomplished prior to trial.

Therefore, the only question on this appeal is the status of the free-standing, permanent sign.

At both the trial of this matter and on appeal, the defendant argues that the subdivision restrictions had been waived or abandoned by repeated violations. While acknowledging that some violations had occurred, the trial judge stated in his Written Reasons for Judgment that those violations were not of such a number or character as to result in a waiver or abandonment of the total plan, citing in support thereof Melrose Civic Association v. Universal Builders, Inc., 289 So.2d 521 (La. App. 1st Cir. 1973), writ refused, 293 So.2d 167 (La. 1974).

In this regard, of the ten permanent signs standing in Concord Park at the time of trial, eight had been submitted for prior approval of the committee. One of the two that had not been submitted for prior approval was the sign on the office of Dodds, Vicari and Moore, Architects, who are the sole members of the architectural control committee. Obviously, they would not be required to submit their own sign to themselves for approval. The other sign erected without prior approval was the defendant’s.

It was also shown that the architectural control committee was actively enforcing the subdivision restrictions regarding signs and in one instance required a restaurant located in the subdivision to lower its sign approximately ten feet. It is, therefore, obvious from the record that even though the committee held no regular meetings, nor kept minutes of their activities, it was, in fact, enforcing the subdivision restrictions as authorized.

In addition to the foregoing, a great percentage of the purported violations cited by the defendant involved signs of a temporary nature such as those advertising office space for sale or lease, and said signs were of an entirely different character than the permanent, free-standing sign which is sought to be enjoined herein.

In both law and fact, the record fully supports the trial judge’s conclusion that no waiver or abandonment of the subdivision restrictions with regard to outdoor signs had taken place in the instant case, and that holding will not be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The defendant’s next contention is that the subdivision restrictions regarding exterior signs are unenforceable since they contain no guidelines or standards to be followed by the architectural committee.

The restrictions’ only reference to signs is contained in paragraph 9 quoted above which requires that all exterior signs must be approved by the committee. As pointed out by defendant, there are no guidelines to guide the committee in the exercise of its authority.

Since the subdivision’s founders did not choose to limit the power of the committee by setting forth guidelines or standards, the inference is that the validity of the committee’s enforcement of the restrictions must be judged by the reasonableness of its actions.

When judging the reasonableness of the committee’s actions, we must look to the purpose behind imposing said restrictions upon the property.

Building restrictions are a means of insuring the lasting aesthetic and monetary value of property. They involve a scheme or plan of which all prospective purchasers are aware, since to be effective building restrictions must be entered into the public records. The owner purchases the land burdened with the restrictions. However, the owner knows that by necessity not every contingency that may occur can be anticipated or controlled in the restrictions. He also knows that as a practical matter every standard by which the restrictions would be enforced could not be incorporated therein.

Without creating definite guidelines or standards, the founders of Concord Place Subdivision chose to allow an architectural committee composed of three architects establish a plan or scheme concerning exteri- or signs.

Concerning the instant sign, the committee chairman téstified that the excessive height of the sign was the reason for its rejection. The trial judge found height to be a reasonable criterion upon which to reject the sign. He also noted that the subject sign was the only subdivision sign facing Interstate 10 that was higher than the roofline of the building it advertised.

The trial judge’s observations are fully supported by the record and we conclude, as did he, that height is a reasonable standard by which the committee could enforce the subdivision plan.

We are, therefore, of the opinion that albeit absent guidelines or standards in the restrictions, the committee’s demand upon defendant to remove the subject sign is enforceable since it was based upon reasonable criteria and was not in opposition to the total plan of the subdivision.

The trial judge properly disposed of defendant’s third specification of error as follows:

“Another ground asserted for making the restriction inoperative is the clause ‘— in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required-’ Certainly, no suit was filed before the sign was completed. However, [if] by the exact wording, this provision could be applied to signs, the application thereto would render the enforcement of the provision impossible since a sign could be installed before being noticed and certainly before a suit could be prepared and filed. A more reasonable interpretation would be that this provision applies only to buildings or structures requiring extended times for erection.” (Written Reasons for Judgment, Record, pp. 35, 36)

The last issue on this appeal was prompted by the trial judge’s written reasons denying defendant’s motion for a new trial. Therein the judge asserted that according to the original judgment granting the injunctive relief to plaintiff, the defendant was required to seek the committee’s approval of the sign. Both parties appeal this portion of the judgment, pointing out that the committee has already disapproved of the sign.

Under the facts and circumstances of this case, we agree with both parties’ contention that to require the defendant to submit the sign for approval would be a vain and useless thing. The committee is unequivocally opposed to the height of the sign.

As we have determined that the committee’s refusal to approve the sign was valid and enforceable, plaintiff is entitled to a judgment enforcing the committee’s action.

Plaintiff’s petition prayed for complete removal of the sign. However, the record establishes that there are no questions concerning the sign’s overall quality. The only defect complained of by the committee is its height.

Therefore, under the authority vested in this court by LSA-C.C.P. Art. 2164 the judgment of the trial court is amended to order defendant, Mike Merriam, to adjust the height of the complained of sign located on the northeast corner of Lot 14, Concord Park Subdivision, to conform to the standards of the subdivision’s architectural control committee with regard to height, that is, to lower said sign so that its uppermost limit does not extend higher than the roofline of the building it advertises. Defendant is allowed thirty days from the date this judgment becomes final in which to accomplish same. If such adjustment is not accomplished by defendant within the allotted time, it is further ordered, adjudged and decreed that defendant, Mike Merriam, be permanently restrained, enjoined and prohibited from maintaining said sign on Lot 14, Concord Park Subdivision.

In all other respects, the judgment of the trial court is affirmed.

All costs of this appeal are to be borne by défendant, Mike Merriam.

AMENDED AND AS AMENDED, AFFIRMED.

      . LSA-C.C.P. Art. 2164, in pertinent part, provides:
      “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. * * * ”


author: MARVIN, Judge.

text:
    Ralph ERWIN, d/b/a Ralph Erwin Realty Co. v. Jean B. YOCKEY.
    No. 12867.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellant.
    Kostelka, Blackwell & Swearingen by Lawson L. Swearingen, Jr., West Monroe, for appellee.
    Before PRICE, MARVIN and SMITH, JJ-
   MARVIN, Judge.

Judgment below rejected the demands of a realtor for a real estate commission on a written contract which the lower court held was “terminated” by the mutual oral consent of the realtor and the owner. Plaintiff realtor appeals. We affirm.

The written contract was to extend for a four-month period. Once the contract was signed, the plaintiff real estate agent listed the property with the proper real estate board, placed for sale signs on the property, and advertised its availability for sale in newspapers. Several prospective purchasers responded by inspecting the property, one of which was accompanied by the agent. About three weeks after the contract was signed, the landowner,- Mrs. Yockey, a widow, informed the agent that she no longer desired to sell the property because she was going to rent it to one of her children. The agent thereafter informed other realtors the property was not for sale, cancelled further newspaper advertisements and removed the for sale signs. The landowner offered to pay the expenses incurred by the agent but the agent declined to bill the landowner.

About two weeks after the property had been taken off the market, an opportunity arose for the landowner to purchase an adjacent vacant lot. Mrs. Yockey purchased the vacant lot for $5,000.00 cash. Some two weeks following the purchase of the vacant lot, Mrs. Yockey sold the property and the adjacent vacant lot to a William H. Storm by credit deed for $45,000.00, which was the price for which the written agency contract had listed the property, excluding the vacant lot.

Mrs. Yockey’s daughter, who was engaged to be married, changed her plans to rent the house after consultation with her fiancé about the amount of the proposed rental. Mrs. Yockey’s son, who was attending Louisiana Tech University in Rus-ton and who was going to live in the house and commute to school, eventually decided that the cost of commuting from Monroe would not warrant his living in the house. After Mrs. Yockey’s children changed their respective plans, Mrs. Yockey then conferred with three different individuals about renting the house. One of these individuals was Storm, the ultimate purchaser.

After several discussions about a lease purchase agreement, Storm and Mrs. Yockey agreed on the credit sale aforementioned, payable over 144 months. Storm was a residential contractor who was building a house which Mrs. Yockey purchased to live in about the time she signed the agency contract with plaintiff realtor. After the conversations between Mrs. Yockey and the agent which took the former Yockey home off the market, and after Mrs. Yockey’s daughter changed her plans about living in the house, Mrs. Yock-ey purchased from Storm a mobile home or trailer for $7,000 cash to be used as a residence for her daughter and future son-in-law. The trailer purchase occurred about three weeks before Mrs. Yockey sold to Storm the house and adjacent vacant lot.

The record supports the lower court’s conclusions that the agent was not the procuring cause of the sale; that there was no contact between the ultimate purchaser and the agent; and that the evidence did not show, but negated any collusion between Mrs. Yockey and the ultimate purchaser as to any effort to avoid payment of a commission to the agent.

The trial court correctly found that the written contract between Mrs. Yockey and the agency was both an exclusive agency contract and one which conferred on the agent an exclusive right to sell the property. See Kirkland v. Bray, 241 So.2d 601 (La.App. 2d Cir. 1970). Appellant contends since the lower court found he had the exclusive right to sell the property, he is entitled to his commission on the sale made by the owner [of course, during the term of contract]. This would be true under Kirkland, supra, and authorities cited therein unless the contract was terminated or rescinded by the mutual agreement of the parties. See Christ v. Christ, 251 So.2d 197 (La.App. 3d Cir. 1971); Tracy v. Biri, 14 La.App. 125, 129 So. 461 (Orl.1930).

Appellant further argues that since the trial court found that the contract was merely “terminated” he is still entitled to his commission because rights which arise before termination of a contract continue to exist after termination, citing Tharpe v. Tracy, 40 So.2d 509 (La. App. 2d Cir. 1949). In Tharpe, the parties themselves used the word “termination” and applied it to a real estate contract. There we said:

“It is our view that the mutual consent of the parties as evidenced by plaintiff’s letter of September 11th must be construed as a modification rather than an abrogation of the original contract.” 40 So.Zd 509, 511.

Factually, Tharpe is inapposite. There the agent exhibited the property to the ultimate purchaser and quoted the price to him. About one month later — some two weeks after the agency contract had been “terminated” — the landowner sold the exact property to this purchaser for the exact price and terms as given to the purchaser by the agent. Under the facts there, the holding was eminently correct that the true intention was a modification rather than an abrogation of the contract. Here, the agent did not show the property to the ultimate purchaser or otherwise negotiate with him regarding the sale. Storm appeared on the scene after the contract was terminated or rescinded.

The trial court here found that the sale to Storm was previously “unplanned and was to a person with whom no previous negotiations had been had.” Whether the parties here intended rights under this contract to continue for the duration of its specified period, notwithstanding the property being taken off the market, is essentially a question of fact, the determination of which is best made by the lower court. In the absence of manifest error, the factual determinations of the trial court will not be disturbed.

“There is no question as to the right of parties to an unexecuted commutative contract to abrogate or revoke such contract by mutual consent, and this proposition is well substantiated in this State. Article 1901 of the Civil Code declares that legal agreements can be revoked ‘by mutual consent of the parties’; Article 1945, dealing with the interpretation of agreements, confirms the right of the parties to ‘abrogate or modify’ such agreements ; and Article 2130, in enumerating the methods of extinguishing obligations, includes ‘recission’.” Tharpe, supra, at page 510.

At appellant’s cost, judgment is

AFFIRMED.


author: PRICE, Judge.

text:
    William E. WILSON, Plaintiff-Appellant, v. CENTENNIAL HOMES, INC., et al.,Defendants-Appellees.
    No. 12857.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Peters, Ward & Miller by Frederic L. Miller, Shreveport, for defendants-appel-lees.
    Before PRICE, SMITH and HALL, JJ.
   PRICE, Judge.

William E. Wilson, plaintiff herein, brought this suit to recover the balance owed of $26,416.41 due under an alleged subcontract to furnish a portion of the carpentry labor in the construction of an apartment complex known as “The Nest” in Shreveport.

Defendants named in the suit are: Centennial Homes, Inc., the owner; Allen & O’Hara, Inc. its general contractor; and B. J. S. Builders, Inc., a subcontractor with whom plaintiff contends his contract was made.

In supplemental pleadings, plaintiff sought to have recognized and enforced a lien file by him affecting the property on which the work was performed. Defendant, Allen & O’Hara, in accord with its obligation under the general contract with Centennial, filed a bond to secure the lien claimant under the provisions of LSA-R.S. 9:4841 and the lien was canceled. A third party demand was filed by Allen & O’Hara against B. J. S. Builders, Inc., and two other non-residents who had executed a guaranty of completion on the work of B. J. S. This demand was not pursued in the trial court and is not before us on this appeal. Subsequent to the filing of certain preliminary pleadings counsel for B. J. S. was allowed to withdraw and B. J. S. was unrepresented and made no appearance at the trial on the merits. The record reflects that in a separate proceeding plaintiff herein obtained judgment by default against B. J. S. for the amount of his claim.

After a trial of the merits of the subject action against Centennial and Allen & O’Hara, the district court rejected plaintiff’s demands.

From this judgment plaintiff has appealed.

The principal question at issue is whether the plaintiff sustained the burden in the trial court of proving the oral agreement he contends was made with B. J. S. Builders, Inc., which would entitle him to the protection afforded under the lien statute, LSA-R.S. 9:4801, et seq. for the amount he contends is owed under the disputed contract.

The pertinent facts giving rise to this litigation as shown by the record are substantially as follows:

In July 1973, Centennial Homes, Inc. began the construction of a second phase of an apartment complex containing approximately two hundred units. Allen & O’Hara Inc., the general contractor for the project subcontracted with B. J. S. Builders, Inc., a Florida firm, to perform a substantial portion of the contract which included the carpentry work giving rise to this litigation.

Plaintiff made inquiry of the general contractor in regard to furnishing labor in connection with this work and was referred to the B. J. S. superintendent, A1 Moore.

Plaintiff contends he made an oral agreement with Moore to furnish the labor necessary for the framing and flooring of the units then being constructed for the sum of $.35 per square foot. He contends B. J. S. agreed to pay his payroll and to make and disburse the necessary deductions therefrom. He further contends that he was to be paid the contract price of $.35 per square foot on the total of 178,404 square feet less the total labor costs, including FICA taxes, union pension fund contributions, and workmen’s compensation premiums. In his testimony plaintiff describes this payment to be in the nature of a “bonus” for his crew and him finishing the work quickly.

The record shows that prior to the completion of its subcontract work, B. J. S. became involved in financial difficulties and left the job. Allen & O’Hara assumed direct supervision of the remainder of the B. J. S. contract work and made directly the payment of wages to laborers or trades working under the B. J. S. subcontract. It is undisputed that plaintiff has been paid the full hourly wage of $7.35 as a carpenter foreman for the hours worked by him and that full wages have been paid to other members of the crew over which plaintiff supervised in the subject work.

Therefore for plaintiff to obtain the relief sought by him in this action, he must fall within the following pertinent provisions of LSA-R.S. 9:4801:

Every contractor, subcontractor, . who performs work . . . for the erection, construction, ... of immovable property, . . . with the consent or at the request of the owner thereof, . . . or of any person with whom the owner has contracted for such work has a privilege for the payment in principal and interest of such work or labor performed . . . upon the land and improvements on which the work or labor has been done . (emphasis supplied)

In his attempt to prove he was a “subcontractor” and thus entitled by virtue of the above statute to assert his claim for the balance alleged to be owed him by B. J. S. against the lien bond filed by the prime contractor in lieu of the privilege against the owner’s property, plaintiff sought to prove an oral contract with B. J. S. by his own testimony and other corroborating circumstances.

The trial judge did not find plaintiff had met his burden of proof in this regard and rejected his demands. Although we consider the evidence to present a close question, we do not find the trial court has committed manifest error in its factual finding and affirm the judgment appealed from.

The standard of proof required to constitute legal proof of an oral contract is reviewed by the court in Hoffpauir v. La-Cal Mud Specialties, Inc., 165 So.2d 65 (La.App. 1st Cir. 1964) as follows:

Clearly the burden of proof, with legal certainty and by a preponderance of the evidence, rests upon a plaintiff who sues on an alleged oral contract; he must prove the existence of the contract and the term thereof. Haase v. Brumfield, La.App., 137 So.2d 680; Carroll Lumber & Supply Co. v. Bushong, La.App., 125 So.2d 210; Hunter Co. v. Commissioners of Bossier Levee Dist., La.App., 115 So. 2d 226; E. Levy & Company v. Shreveport Plumbing Company, La.App., 108 So.2d 810. And LSA-C.C. Art. 2277 provides that all contracts for the payment of money above $500 “ * * * must be proved at least by one credible witness, and other corroborating circumstances.” Therefore, in the instant case plaintiff has the double burden of proving the terms of the oral contract on which he relies and of making such proof by at least one credible witness and other corroborating circumstances.

Also see Bordlee v. Pat’s Construction Company, Inc., 316 So.2d 16 (La.App. 4th Cir. 1975).

Plaintiff sought to corroborate his own testimony that he had an oral agreement with the foreman of B. J. S. for payment on a unit price basis by the testimony of three carpenters who worked in the framing crew with him. They testified plaintiff solicited them to work on the subject construction job on a percentage and told them he had an agreement with B. J. S. to do the work for $.35 per square foot.

The testimony shows one of these witnesses expected to receive sixteen per cent and the other two eight per cent each of any amount plaintiff was paid under the alleged agreement with B. J. S.

Their testimony must be weighed in the light that it is hearsay and that the witnesses have a financial interest in the result.

Plaintiff also presented the testimony of another labor contractor, W. E. Hendrix, who testified the method of payment for framing work as claimed by plaintiff in this case was followed in the construction industry and that he had engaged plaintiff on this basis on prior jobs. However, he testified he also has engaged such work on a straight hourly wage basis.

While the foregoing evidence presented by plaintiff does have some corroborating value, we do not believe it constitutes proof by a preponderance of the evidence under the circumstances presented.

Enforcement of the contract in this proceeding is sought against parties who were not privy to its formation and who are therefore less able to offer proof to negate the existence of the agreement than is plaintiff to prove the affirmative. For this reason, the proof demanded of plaintiff to constitute a preponderance of the evidence should be clear and convincing.

All time records of employees submitted by B. J. S. to Allen & O’Hara for procurement of progress payments show plaintiff and his crew members as earning regular carpenter or foreman’s wages. According to the testimony of an accountant for Allen & O’Hara the method of accounting followed was not in accord with the proper procedure used when there is a necessity to accrue the wages of certain employees separately to accord with a cost plus subcontract.

The preponderance of the evidence establishes that none of Allen & O’Hara’s personnel were aware plaintiff had an arrangement with B. J. S. other than as a carpenter foreman.

We find it unusual that at the time B. J. S. quit the job and Allen & O’Hara took over supervision of its contract work, that plaintiff did not inquire if his anticipated “bonus” promised by the defaulting subcontractor would be honored if he continued the work. This is all the more unusual in that plaintiff testified on one occasion prior to B. J. S. leaving the job, he and his men called a several hour shutdown of their work in an attempt to force B. J. S. to make payment under the agreement. No payment was made at that time by B. J. S. and plaintiff continued to work after allegedly being assured by the B. J. S. superintendent the money would be paid soon.

At the time Allen & O’Hara took over payment of B. J. S. employees directly, it would appear plaintiff would have made some demand for the balance which he contended was then owing under the oral agreement or would have discussed its future payment in the event he did not consider payment due until completion of the entire contract.

The foregoing circumstances create an inference there was no contractual relationship between plaintiff and B. J. S. other than an employment relationship as a carpenter foreman.

Plaintiff has failed to prove his claim to be a “subcontractor” under the lien statute and therefore his demands were properly rejected by the trial court.

In accord with the foregoing, the judgment appealed from is affirmed at appellant’s costs.


author: SMITH, Judge.

text:
    Ethel Carolyn YOUNGBLOOD, Plaintiff-Appellee, v. James Raville YOUNGBLOOD, DefendantAppellant.
    No. 12868.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      C. Sherburne Sentell, Jr., Minden, for defendant-appellant.
    Shaw & Shaw, by W. M. Shaw, Homer, for plaintiff-appellee.
    Before PRICE, MARVIN and SMITH, JJ.
   SMITH, Judge.

Plaintiff sued her husband for separation from bed and board on the grounds of abandonment. The lower court rendered judgment for $750 per month for the support of the three minor children of the marriage. The husband appeals alleging that the award is excessive. We affirm.

Mr. Youngblood is in the contracting business with his principal office in Haynesville, Louisiana. It is not disputed that his income for 1974 was approximately $60,000 from his welding contracts and his oil field service. He contends, however, that this figure is not representative of his 1975 income, for which tax returns were unavailable at' the time of trial, because he has lost a major contract which accounted for a substantial portion of his 1974 income. His largely uncorroborated testimony at trial was that he was making $800-$l,000 per month at that time. The trial judge apparently found defendant’s evidence tending to show a substantial decrease in earnings for 1975 unconvincing. We find the record substantiates this finding.

Mr. Youngblood had in his employ four welders whom he paid $5.50 and contracted out at $12.50 per hour. He has several pieces of heavy equipment belonging to the community which he continues to lease to others and receives the revenue therefrom.

Mrs. Youngblood has a history of serious medical problems. Although she has suffered some emotional problems in the past, the evidence at trial indicated she had fully recovered. At the time of the trial she was living in the family home with the three children, ages 14, 11, and 5. Because of physical disabilities relating to a 1973 operation she is receiving $620 in Social Security benefits.

Article 227 of the Louisiana Civil Code provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

Louisiana Civil Code Arts. 230 and 231 state this duty to support children of the marriage extends to whatever is “necessary for the nourishment, lodging and support” of the children and shall be granted in “proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”

Mrs. Youngblood submitted a very detailed affidavit itemizing expenses for herself and the three children amounting to $1,963.85 per month. It is apparent the trial judge recognized the list of expenses was excessive in some respects as the award of $750 for the children, when added to her income of $620, provides a gross income for their combined living expenses of only $1,370 per month. This amount is not out of line with the evidence showing the family’s prior standard of living and appears to be within defendant’s ability to pay.

In fixing the amount that a parent must pay for the support of his children, the trial judge is granted much discretion and the award will not be. disturbed unless there is a clear abuse of discretion. Frazier v. Frazier, 318 So.2d 625 (La.App.2d Cir. 1975); Jackson v. Jackson, 275 So. 2d 456 (La.App.2d Cir. 1973) and cases cited therein.

We find no abuse of discretion by the trial judge. Accordingly, the judgment is affirmed at appellant’s cost.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. Allen Ross McDONALD.
    No. 12870.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 9, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Robert L. LeDoux, Barnard Malone, Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker, and Herman A. Castete, Jonesboro, for defendant-appellee.
    Before PRICE, MARVIN and SMITH, JJ.
   MARVIN, Judge.

The State appeals from a judgment awarding $54,244 for property expropriated for highway purposes under the quick-taking provisions of L.R.S. Title 48, for which property the State had deposited $21,615.00 as its estimate of just compensation. The landowner contends in answer to the appeal that the award should be increased. We amend the judgment below so as to modify the award and the amount allowed as expert witness fees and, as amended, affirm.

The property in question is a portion of a corner lot in Jonesboro about three blocks south of the Jackson Parish Courthouse on Highway 167. We have considered the appeal of several cases where property on this highway was expropriated along the approximate three-mile stretch from Jonesboro to Hodge. The property under consideration is the southernmost of the several properties we have so far considered. In each case we have been favored with the appraisal testimony of Messrs. Carlock and Roy for the State, and of Messrs. Bass and Jordan, sometimes together with the testimony of Messrs. Monsur and Willett, for the respective landowner. We are again favored with the testimony of these six gentlemen.

Prior to the expropriation, the property comprised 15,000 square feet on which was situated a service station, a storage building and an apartment building. Reproduced here is a facsimile' of the survey of the property showing the location, existence of improvements, and as shaded area, the portion expropriated, totalling 2,944.9 square feet.

Each of the appraisal witnesses used sales which they considered comparable to the subject property and adjusted these sales by various factors (time, location, similarity or disparity in use or topography, etc.). One comparable was a September 16, 1969, sale of property to Oil Mark Corporation for approximately 99 cents a square foot. We considered this property in State, Dept. of Highways v. Oil Mark Corp., 324 So.2d 606 (La.App. 2d Cir. 1975), and found that the fair market value at the time of the expropriation was $1.80 a square foot. In Oil Mark, we assessed severance damages of $15,-249.00 which included $3,000.00 as damage to the real estate remaining after the taking. The Oil Mark property, while not a corner lot, is approximately two blocks north of the subject property.

We also note that the subject property is one block south of the property under consideration in Whitman. Whitman also involved a commercial corner lot. There, we approved or determined that the award should be on the basis of $1.75 a square foot for the property taken, a 30 percent depreciation to the remainder because of its reduction in size and limited use as commercial property, plus an amount for the value of the improvements condemned. There the property consisted of approximately 12,500 square feet before the taking, from which some 4,100 square feet were taken. Approximately 1/ of the Whitman property was taken, while here approximately i/s of the subject property is taken.

The Bounds property was located about four blocks north of the subject property. There the property was considered as commercial and was a corner lot on Highway 167. We adopted the trial court’s conclusions that the award should be determined on the basis of $2.00 a square foot, deducting therefrom a cost to fill the land to the grade of the highway. Severance damages were also there awarded, principally because the property was reduced in size by the taking from 7,500 square feet to 2,900 square feet.

In Oil Mark and in Model Development Corporation, we made specific comment as to the range of awards made or approved for expropriation of commercial property along Highway 167 in the Jones-boro-Hodge area. Those comments are appropriate here.

The trial court awarded $3.50 a square foot for the property taken; $25,854 for improvements taken and $18,032.85 severance damage. Expert witness fees allowed by the trial court totaled $12,650.52.

The State contends the trial court erred in valuing the land at $3.50 a square foot; in assessing severance damage and in allowing excessive expert witness fees. The landowner contends the awards should be increased and that the State’s appeal should be held to be a frivolous appeal and attorney’s fees therefor should be assessed against the State.

The several appraisers used the comparable sales or market data approach, using their professional experience in adjusting the sales, which they considered in varying degree to be comparable to the subject property. The service station and small storage house are to be (or were) removed from the property. Some concrete remaining on the portion of the property not expropriated will also have to be removed to make the property again suitable for commercial development.

The ultimate values assigned by the several appraisers were as follows:

DEPRECIATED
SQ. FT. VALUE OF DEPRECIATION
VALUE IMPROVEMENTS FACTOR (%) SEVERANCE
State 1 $1.95 $20,146.00 30 None
State 2 $1.85 $18,163.00 36 None
Owner 1 $4.00 $30,397.00 30 $24,110.00
Owner 2 $3.00 $24,137.00 30 $16,028.00
Owner 3 $4.00 $40,495.00 331/3 $16,000.00
Owner 4 $3.00 $31,252.00 28 $10,849.00
Trial
Court
Award $2.81 $25,854.00 30 $18,032.85

The service station building was approximately 35 years old. Prior to the taking, the property fronted only 44 feet on Pershing Highway (167) because of a triangular tract belonging to an adjoining landowner stood between the property and the highway. The triangular tract was expropriated by the state and after the taking the subject property will have 133 feet frontage on Pershing Highway. On Allen Avenue, the frontage will be reduced from 100 feet to 50 feet by the taking.

As in Kilpatrick, it is contended here that barrier curbs contemplated by the State along the proposed improved highway will grossly depreciate the remaining property and that severance damages of $18,032.15 should be approved. In Kilpatrick, we said:

On the authority of Kilpatrick and Oil Mark, it is our judgment that an adequate compensation for severance damage would be $3,000.00. On the authority of the cited cases and awards therein, and on the basis of the totality of the evidence herein, recognizing that each particular property in question must be valued on its own, it is our opinion that a just and adequate award for the property taken would be $2.10 a square foot. We do hot disturb the itemization by the lower court as to its findings regarding the depreciated values assigned to the service station building ($23,058), the storage building ($900), the concrete ($1,496) and underground utilities ($400), which will be destroyed, ruined or removed by the taking. These items total $25,854.00. The judgment shall be amended accordingly.

“The evidence as to additional development costs and dimunition in value of the remaining property by virtue of the highway construction is somewhat speculative. Defendant’s evidence is convincing, however, that there will be some dimunition in value of the remaining property by reason of limitation of access and additional development costs arising out of the taking and construction. In our judgment the sum of $2,-500 will adequately compensate for severance damage." Kilpatrick, 327 So.2d 456 (1976).

EXPERT WITNESS FEES

As expert witness fees, the trial court awarded:

H. L. Bass $2,550
O. L. Jordan 2,424
Darrell V. Willet 2,675
Hab Monsur 2,900
Ronnie Terral 500
Don Barron 550
A. Ray Bond 300
Lavelle Nunn 451
Richard Crawford 300
TOTAL $12,650

In Kilpatrick, we observed:

“The Highway Department contends the expert witness fees awarded are excessive. In several recent expropriation cases involving this same highway project, or other projects in the Jonesboro area, and involving most of the same witnesses, this court found similar fees to be excessive and reduced the awards of the district court. [citing cases]
“Defendant argues the present case is different because the expert witnesses more precisely itemized and described the services rendered and the time involved, thereby substantiating the charges made by them.
“Considering the evidence as to the services rendered by the expert witnesses, the value of the property taken and severance damages awarded, and the amounts allowed for expert witness fees in other similar cases recently before this court, we disallow the fee for the photographer and fix the expert witness fees as follows:
O. L. Jordan $700.00
H. L. Bass Loren Willet 700.00 700.00
Richard Crawford 250.00”

For reasons expressed in the cited cases and considering the amounts awarded therein as expert witness fees, we disallow the fee of the photographer and amend the award of fees as follows:

H. L. Bass $ 750.00
O. L. Jordan 700.00
Darrell V. Willet 750.00
Hab Monsur 750.00
Ronnie Terral 325.00
Don Barron 350.00
A. Ray Bond 250.00
Richard Crawford 250.00
TOTAL $4,125.00

THE RECUSATION ISSUE

The trial judge is a defendant in two expropriation cases filed in Jackson Parish wherein the property expropriated abuts a state highway or state highways other than Highway 167, but which connect with Highway 167. The record indicates this property is essentially rural in nature as opposed to the urban or commercial nature of the Highway 167 area of construction. The State filed a motion to recuse on these grounds alleging an “interest” in the cause. La.C.C.P. Art. 151(5). Another judge of the same district heard and denied the motion because of the State’s failure to meet the burden of proof.

Art. 151(5) provides a judge may be recused when he is “interested in the cause.” The “interest” of the judge sought to be recused insofar as the “cause” of the subject landowner is extremely remote. The State presented no evidence to show that this judge had employed in his cases the same attorneys or appraisers. The trial judge did volunteer that he had employed the same photographer to make pictures of his property affected by the expropriation suits. We know of no exact test, and we are not cited any, whereby an interest in the cause can be easily and readily determined. Each situation will have to be examined where “interest” is asserted. While the burden is on the litigant seeking recusation, interest in a cause may be inferred from other facts and circumstances. We find no error below in this respect.

We are certain that all of our esteemed and learned brethren of the bench are mindful of the need to uphold and enhance the dignity of the judiciary and bar in the eyes of our fellow citizens. We feel confident that in cases where there is truly an interest “ . . . however remote and distant, sufficient to incite the tongue of the disappointed to the most unreasonable suspicion,” the judge will recognize his interest, and in other cases where the interest does not exist but where it is plausible for the citizenry to infer that the judge has an interest in the cause, the judge will likewise recognize this and will always be guided by the high standards of his office.

SUMMARY

Judgment below is amended to reduce the total amount awarded to $35,038.29 as just compensation and to fix the expert fees as above set forth.

Amended, and as amended, Affirmed.

      . See La.App. 2d Cir. cases (1975) : State, Dept. of Highways

        v. United Pentecostal Church, 313 So.2d 886

        v. Whitman, 313 So.2d 918

        v. Bounds, 319 So.2d 549

        v. DeJean, 322 So.2d 265

        v. Model Development Corp., 322 So.2d 270

        v. Oil Mark, 324 So.2d 606 (1976)

        v. Kilpatrick, 327 So.2d 452 (1976)

      . Recusation vel non, is interlocutory in nature and may be reviewable on appeal of a final judgment on the merits of the case. See Bchwing v. Dunlap, 125 La. 677, 51 So. 684 (1910). The Code of Civil Procedure is silent as to the procedural means to achieve review of an order granting or denying recusation of a judge.

      . Succession of Jan, 43 La.Ann. 924, 10 So. 6, 7 (1891).