author: SARTAIN, Judge.

text:
    Katherine E. LANDRY et al., Plaintiffs-Appellants, v. PARISH OF EAST BATON ROUGE et al., Defendants-Appellees.
    No. 11039.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Granted May 6, 1977.

      Van R. Mayhall, Jr. and Robert P. Breaz-eale, of Breazeale, Sachse & Wilson, Baton Rouge, of counsel for plaintiffs Katherine E. Landry, et al., appellants.
    Fred G. Benton, Joseph F. Keogh, Parish Atty., Baton Rouge, of counsel for defendants Parish of East Baton Rouge, et al., appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this litigation the plaintiffs appeal from a judgment rejecting their demands to have their respective properties stricken from an ordinance assessing each the sum of $39.31 per front foot as their prorata share of the costs incidental to street improvements.

The trial judge, in his written reasons for judgment, concluded that plaintiffs’ petition was untimely filed and sustained defendants’ peremptory exception of prescription. The judge a quo, arguendo, went on to determine on the merits that defendants had not acted arbitrarily and capriciously in the enactment of the ordinance and declined the relief sought. We reverse.

The statutes relating to the improvement of public streets are found in Title 33, Sections 3301 through 3319. Section 3301 vests in the governing body general authority to construct street improvements including necessary curbing, guttering, etc. Section 3302 requires the municipality to first adopt a resolution signifying its intention to make the proposed improvements and to conduct an open hearing so that objections may be made not only as to the improvements but also as to the manner of paying for them. Section 3303 requires that after having conducted the hearing, disposing of objections, and having decided to proceed with the project, the municipality may cause to be prepared necessary plans and specifications. Pursuant to this section the municipality is authorized to adopt a resolution calling for sealed bids. Section 3304 relates to the awarding of the contract. Section 3305 provides that upon the awarding of the contract for the improvements the municipality shall require its engineer to furnish it a certified statement showing the total cost including the amount chargeable to each abutting lot. Section 3306(B) provides that upon receipt of the engineer’s report each property owner shall be mailed a notice stating the general improvements and the amount of his proposed assessment.

EXCEPTION OF PRESCRIPTION

On this issue we are concerned with Resolution No. 10,413 and Ordinance No. 4047. Resolution 10,413 relates to the acceptance of the engineer’s report and the fixing of the total assessment at fifty percent of the cost of the improvements. Ordinance No. 4047 is the assessment ordinance itself. The dates pertinent to the question of prescription are as follows: On March 14,1973, following a public hearing, the Parish Council adopted Resolution 10,274, ordering the improvement of North Street. This resolution was published on May 9, 1973. Also, on May 9, 1973, the Council received the engineer’s report (Section 3305) and adopted Resolution No. 10,413. On May 21,1973, notices were mailed to the affected property owners. (Section 3306[B]). On June 27, 1973, Assessment Ordinance No. 4047 was adopted levying the presently contested assessment. The minutes of the May 9, 1973 meeting were not published until July 12, 1973. The instant lawsuit was filed on July 17, 1973. Assessment Ordinance No. 4047 was published on September 6, 1973.

R.S. 33:3319 in pertinent part, states:

“No contest or proceeding to question the validity or legality of any resolutions or ordinances adopted or proceedings had under the provisions of this Sub-part shall be begun in any court by any person for any cause whatsoever, after the expiration of thirty days from the date when the resolution, ordinance or proceeding was published, and after such time the regularity of such resolution, ordinance or proceeding shall be conclusively presumed. * * * ” (Emphasis ours)

Defendants argue that prescription began to run on May 9, 1973, the date Resolution No. 10,274 was published. Plaintiffs, on the other hand, contend that they are not contesting the authority of the Council to order the improvements. To the contrary, they are contesting Resolution No. 10,413 and Ordinance No. 4047, and only seek to have their lots deleted from the latter. Accordingly, they contend that the running of prescription should be determined by reference to the publication of the subject resolution on July 12, 1973 and the publication of Ordinance No. 4047 on September 6, 1973.

We find the contention of defendants to be without merit. The resolution (10,274) they argue that tolls the running of prescription is not one of the acts of the Parish Council complained of here.

We also find that the trial judge erred in commencing the running of the thirty day period on May 21, 1973, the date notice was mailed to the property owners advising them of the proposed assessment. R.S. 33:3319, above, by its specific terms, affords a property owner thirty days from the date the resolution (10,413) or ordinance (4047) sought to be contested is “published.”

ON THE MERITS

Formerly, North Street was a typical, 2-lane asphalt street, bordered by sidewalks, street lights, and underground drainage. With the improvements it became a 4-lane, concrete thoroughfare bordered by wide sidewalks, underground conduits for street lighting, larger water mains, improved drainage, and tree wells for planting. Plaintiffs urge that these improvements were made in conformity with a program to update the whole of the downtown district of Baton Rouge for the general public. They assert that the Parish Council’s failure to adhere to the specific requirement of R.S. 33:3306(A) resulted in excessive assessments against their properties which caused them to bear a disproportionate share of the cost of improvements. In this regard their complaints are twofold: (1) That Resolution 10,413 is defective for the reason that the engineer’s report did not contain a detailed list of the property to be assessed; and (2) that Resolution 10,413 and Ordinance 4047 are defective because the Parish Council did not follow the dictates of R.S. 33:3306(A) by failing to determine whether “each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment.”

With respect to the first contention, above, we find that the record discloses ample evidence upon which to support a conclusion that the engineer’s report did contain a list of the abutting properties with sufficient descriptions to identify the same and the owners thereof.

However, we do find that plaintiffs’ second contention (above) has considerable merit.

R.S. 33:3306(A), inter alia, provides:

“A. Upon receipt of the certified statement or report of the engineer as provided for in the preceding section, the governing authority shall review said certified statement or report, including the proposed local or special assessments, and thereafter shall make a determination as to whether each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment. * * * ”
(Emphasis ours)

By way of information we should note that R.S. 33:3306 was amended by Act 552 of 1970. Before this amendment the statute permitted the levying of a special assessment on property “in proportion that its frontage bears to all the abutting lots or parcels of real estate to be improved . . ” It was referred to as the “front foot” rule.

Under this section, prior to amendment in 1970, numerous cases attest to the fact that the total burden of street improvements could be placed on the abutting property owners. Donaldson’s Heirs v. City of New Orleans, 166 La. 1059, 118 So. 134 (1928). The only requirement was that the assessment must be in proportion to the total frontage. City of Shreveport v. Weiner, 134 La. 800, 64 So. 718 (1914). It was not necessary that there be any special benefit to the owner. City of Shreveport v. Shreveport Traction Co., 134 La. 568, 64 So. 414 (1914). Nor did it matter that the amount of the assessment exceeded the, value of the property. The imposition of such an assessment based exclusively on a front-foot basis and without inquiry as to benefits did not constitute a taking of property without due process of law. Donaldson’s Heirs v. City of New Orleans, above.

Thus, it can be readily seen that the 1970 amendment to R.S. 33:3306, with the requirement that each lot or parcel of land abutting the improvements be benefited to an amount not less than the proposed assessment, brought about the very significant change in a municipality’s authority to assess for street improvements.

Resolution No. 10,413, adopted on May 9, 1973, recites in Section 2:

“Upon receipt of the foregoing certified statement or report of the Engineer as provided for in R.S. 33:3305, this Parish Council did review said certified statement or report, including the proposed local or special assessments, and does hereby find and determine that each lot or parcel of real estate to be assessed is to be benefitted to an amount not less than the proposed local or special assessment. In making said investigation, finding, and determination this Council has found to the best of its knowledge, information, and belief that each proposed assessment is true and correct and that the property to be assessed in each instance is benefit-ted to an amount not less than the proposed local or special assessment therefor.”

This particular resolution forms the basis for Assessment Ordinance 4047. In the resolution the initial assessment was fixed at $42.15 per front foot. This initial assessment was reduced to $39.31 per front foot as a result of the liquidation of a contingency reserve included in the construction cost. The assessment ordinance reflects this change.

It is well settled that municipal legislative acts are presumed to be valid and the burden rests with the party who asserts the contrary. A court may not interfere with this legislative function unless it is clearly shown that the legislative body’s action is so clearly arbitrary and capricious as to be unreasonable. Olsen v. City of Baton Rouge, 247 So.2d 889 (1st La.App.1971), writs refused, 259 La. 755, 252 So.2d 454 (1971).

Equally well settled, however, is the rule that statutes conferring upon municipalities the authority to impose local or special assessments are in derogation of common rights and must be strictly construed. Bell v. City of Shreveport, 234 La. 607, 100 So.2d 883 (1958); Barber Asphalt Paving Co. v. Watt, 51 La.Ann. 1345, 26 So. 70 (1899); and, Gamburg v. City of Alexandria, 85 So.2d 276 (2nd La.App.1956).

Resolution 10,413 and Ordinance 4047 specifically state that the Parish Council made the required determination. Words to this effect, however, do not necessarily make it so. The presumption is that such a determination was made. The question is whether plaintiffs have borne the burden of proving the contrary.

Plaintiffs’ witnesses testified that they were in attendance at the May 9, 1973 meeting and that no discussion was had relative to any individual lot or the benefits thereto; but to the contrary, the Engineer’s report was accepted as a routine matter and without discussion.

Defendants argue that the resolution speaks for itself and represents the collective views of the individual members of the Parish Council. They contend that the matter of improving North Street was under consideration and subject to numerous public hearings for years prior to 1973 and that whereas no particular emphasis was placed on any particular lot, the subject itself, including benefits in general to the abutting property owners, was very much in the minds of the Council members and received every consideration.

On the question of benefits, plaintiffs’ evidence is to the effect that North Street prior to the improvements, including its sidewalks, drainage and lighting, was satisfactory in every respect. They further offered the testimony of a real estate appraiser who opined that the improvements add no value to their property.

Defendants’ testimony, as expected,' is to the contrary. Improved drainage was attested to by the Director of Public Works for the City of Baton Rouge and Parish of East Baton Rouge. Benefits derived from added fire protection because of enlarged water mains were described by the Fire Chief. The Chief of Police stated that improved lighting enhanced police protection and was a deterrent to crime. Admittedly, these views on fire and police benefits were not given to the Council on May 9, 1973.

Mr. Ray Burgess, Director of Public Works, testified that on numerous occasions he discussed with the members of the Council the benefits to be derived from and the necessity for the noted improvements.

Mayor-President Woodrow W. Dumas testified that the improvement of the streets, including North Street, in the central business district of Baton Rouge, revitalized the entire area.

The Parish Council is composed of twelve members. The minutes reflect that the subject resolution and ordinance were unanimously adopted. Only two members of the Council were called to testify and they by the plaintiffs.

Councilman W. T. Winfield testified, in part, as follows:

“THE COURT: The question was, does he remember whether or not there was evidence presented to the Council in regard to the special benefits to the pieces of property. And it will just require right now a yes or no answer.
BY MR. BREAZEALE:
Q. At the May 9th, 1973 meeting.
A. I can’t answer that with a yes or no answer.
THE COURT: Well, you may try and then explain.your answer.
A. Okay, we had a capital improvements committee meeting where evidence or presentations was made in behalf of the changing of the lanes on the street. At that time I was at that meeting although I don’t serve as a member of that committee. The evidence that was presented at that time to my knowledge and memory was that in planning for the future, the four laneing of North Street would be to the benefit of the public. In addition to that particular point, another piece of evidence was presented, and I’m not certain Your Honor whether it was presented at the committee meeting or the Council meeting, was that the exit on the North Street, or the North Street exit, or for the expressway would be redone by the State Department of Highways, as another means of proving that that street needed four lane-ing. By Council meeting, I had a letter in my presence that was from Mr. W. T. Taylor, who is the head of the Department of Highways, which stated in fact that there was no plans in the future and nor did they feel that they would ever demand this because of traffic. That’s about as fair as I can answer it. To say that the evidence that was presented was not evidence, that would generate to me the benefit of the public, due to the fact that the only ones was the State Department plans and the traffic plans for the future. Which I argued that these traffic plans or evidence of future demand for traffic on that avenue at that time was done by a land use study that was done previous, several years back and the growth anticipated, yearly growth of traffic on that artery had not justified us going into it with an increase of laneing.
Q. In other words, you had evidence that four laneing the street was in the general public interest; is that correct, sir?
A. Right.
Q. And did you have any evidence before you when this report was received and the resolution adopted on May 9th, 1973, any evidence as to special benefits to the property owners on North Street between 5th and 9th Street?
A. No, sir.”

Councilman Thomas V. Neck’s testimony can best be summarized by the following quote:

“THE COURT: With that understanding, the question was do you remember what evidence was presented to the Council that caused the Council to vote the adoption of this ordinance in which there was a finding that there was benefit to the local property owners.
THE WITNESS: That’s the question?
THE COURT: Yes, sir.
THE WITNESS: Wéll, it’s not three lanes versus four lanes?
THE COURT: No.
THE WITNESS: It has nothing to do with it, okay. Just from my standpoint, the improvement of the street whether it be three or four lane, I think would benefit the property owners. This would be what I was lead to believe.
THE COURT: Now, that was by—
THE WITNESS: Just general discussion, I think we discussed this issue for, hell, probably ten, twelve months at different various times. And the commercialism of that block or blocks would increase the property values. And the upgrading, which we did this street, the upgrading, the environment, the surroundings and just the social and economic standards that are involved in that area, and that’s all I can answer. The main reason I went with four lanes is because of the new American Bank going downtown. And I thought eventually if we did go three lanes that we’d have to come back and make it four lanes at a later date, and that was the reason I voted the way I did.
MR. KEOGH: Once again, interpose this objection. We are getting into qualitative consideration.
THE COURT: I think so Mr. Breaz-ealé. We are getting into a wide ranging discussion into semantics as to what the principal consideration was or was not. As I say, the evidence that I will consider will be not opinion testimony or anything at all like that. It’s whether or not there was evidence presented to the Council and considered by the Council to form a basis for their finding that there was special benefit.
THE WITNESS: Judge, just let me say, I never did consider any kind of assessments on the property or any of these other things. I just, you know, you want the truth. I just thought that was in the best interest of the public to have it four lanes. I never considered the assessment or who was there or — I know Mr. Jensen moved in on that same street. I’ve done business with him, you know, after all this. I never considered this. What I was considering, what was better and I think the cheapest way at the time to get the best job done was to get it four laned. And I just voted for the general public and I thought in all fairness that was the best use of that area.”

The record reflects that.in 1965 the voters of the Parish of East Baton Rouge approved a capital improvements bond issue. Included in the projects to be undertaken were considerable portions of the central business district of Baton Route. As early as March 22,1967, the Parish Council evidenced its intention to apply a portion of these revenues to the improvement of the “downtown area” of Baton Rouge on the basis of Parish participation of fifty percent of the cost with the remaining cost to be borne by the abutting property owners. It published its intention to do so on April 20, 1967. On May 10, 1967 it conducted a public hearing on the matter and adopted a resolution of intent. Subsequent resolutions, similar in purpose to that of March 22, 1967, were adopted. Numerous public hearings were conducted. Most, if not all, of these subsequent resolutions refer to fifty-fifty participation as set forth in the March 22, 1967 resolution. From its earliest date to the institution of this litigation, the Parish Council has never deviated from this policy consideration and throughout the improvement of the entire downtown section of Baton Rouge it has participated to the extent of fifty percent of the cost and has assessed the abutting property owners for the balance on a front-foot basis. May- or Dumas testified that all owners of downtown property were treated equally and assessed in this manner, including plaintiffs.

We think plaintiffs have borne their burden of proof. We do not question the good intentions of the Parish Council in adopting the subject resolution and ordinance. It initiated a program in 1969 to improve the downtown business district of Baton Route at a time when assessments could be imposed without consideration of a cost-benefit ratio. However, Act 552 of 1970 changed the rules. Municipal authority is now limited in that any given assessment cannot be greater than the benefit to be derived. Moreover, the imposing authority is mandated to make this determination. R.S. 33:3306(A), above.

Plaintiffs’ properties are located on the north side of North Street and each is zoned A-4 (multi-family residential). For the purposes of the assessment, proposed and actual, their properties were treated the same as each and every other piece of property located in the central business district of Baton Rouge without regard to its restricted use or otherwise.

Defendants argue that court interference in the instant matter is an infringement upon the legislative authority of the Parish Council. We disagree. This is not a question arising out of the exercise of discretionary authority, i. e., whether to widen or improve a given street. The action taken by the Parish Council in the instant matter is an exercise in the power to assess and this authority must be strictly construed.

There is not one scintilla of evidence in this record that states that any given benefit adds “X” dollars to the value of the properties sought to be assessed so that the sum total of all of the benefits alleged to flow from all of the improvements equal the amount of the assessment. All of the testimony offered by defendants is in general terms. The language found in the resolution and the ordinance that a determination was made is nothing more than a conclusion and does not satisfy the mandate of the statute.

Defendants ask that we not require separate before-and-after appraisals of each lot to justify the imposition of an assessment as such requirement would be an unreasonable and costly burden on the public authority. We do not propose to do so. We do, however, state that the legislature did not presume that the composition of our public authorities would consist primarily of members expert in the field of real estate values. Under the statute the governing authority is required to make a “determination” and in this respect to perform a quasi-judicial function. What evidence or information as to the value of benefits a governing authority considers in making this determination should be left to the authority. So long as such information is reasonable and serves as a sound basis upon which an assessment can be imposed, it will be held to satisfy the requirements of the statute.

Defendants cite Butaud v. City of Lake Charles, 338 So.2d 358 (3rd La.App., 1976), as presenting facts similar to those in the case at bar. For emphasis, we quote that court’s finding of fact:

“The expert appraiser employed by the City Council to determine the extent of benefits from the paving projects estimated that amount to be $28.50 per front foot. He announced this finding at the March 20, 1974 meeting of the Lake .Charles City Council. Acting on the basis of this estimate, and-after consulting various department heads and other advis-ors, and listening to plaintiffs’ objections, four of the seven City Councilmen voted for acceptance of the ordinance declaring that the benefit to the assessed property exceeded the amount of the proposed paving assessment. At a subsequent meeting, five of Lake Charles’ seven City Councilmen voted in favor of the ordinance actually levying an assessment of $35 per front foot.
“Each of the four councilmen who voted in favor of the ordinance accepting the. engineer’s report knew of the statutory requirement that paving assessments not exceed the amount of benefit to the assessed property. Each of the four councilmen testified that he discussed the matter of the paving assessment with various city department heads, or other advisors. Each of these four councilmen was asked the pivotal question of whether he thought the property abutting the Prien Lake Road improvement was benefited to the extent of $35 per front foot. Each answered affirmatively. (Emphasis ours)
“The record as a whole shows the Council considered the matter carefully over a period of several months. There was ample evidence that plaintiffs’ properties were benefited substantially. Essentially, the issue before the Council was whether the benefit was as much as $35 per front foot. Mr. Coleman, the appraiser employed by the Council, estimated the benefit as ‘at least’ $28.50. This is so close to the figure of $35 approved by the Council that we, as a court reviewing a legislative determination, cannot say the Council acted arbitrarily on this basis.”

Further, we note that the court felt compelled to negate the “going-rate” approach to assessment practice.

The facts in the instant case are quite different from those found in Butaud, above. Here, there was no appraisal or similar information furnished the Parish Council. As stated above, there is not one single statement in this record that the members of the Parish Council were given any dollar value as to benefits. Most importantly, there is not one single statement in this record to indicate that the Parish Council deviated one iota from the policy that it announced in 1967 to assess property owners fifty percent of the cost of improvements. To the contrary, the entire tenor of the evidence and, more particularly, the argument and brief of counsel for defendants is to the effect that this policy of fifty percent participation was fair and equitable. It may well be fair and equitable but it begs the crucial question of whether the properties have been benefited to an amount not less than the assessment.

Because Ordinance 4047 will form the basis for the issuance of municipal bonds, we feel compelled to state that the validity of the ordinance is not impaired. Plaintiffs do not seek to have the ordinance so declared. They seek only to have their individual assessments stricken therefrom. We limit our ruling herein to this effect.

Accordingly, for the above and foregoing reasons, the judgment of the district court is reversed and judgment is rendered herein in favor of the plaintiffs and against the defendants decreeing that the properties of the plaintiffs be and are hereby stricken from “LOCAL OR SPECIAL ASSESSMENT ORDINANCE NO. 4047 OF THE PARISH OF EAST BATON ROUGE, LOUISIANA, FOR THE YEAR 1973.” (Adopted June 27, 1973). Said assessments are more particularly described and shown thereon as Assessment Numbers Fifteen (15), Sixteen (16), Seventeen (17), Nineteen (19), Twenty-five (25), Twenty-six (26), Thirty (30), Thirty-one (31) and Sixty-one (61). All such costs as are permitted by law are assessed against the defendants.

REVERSED AND RENDERED.

      . The defendants are the Parish Council of the City of Baton Rouge and Parish of East Baton Rouge, the Mayor-President, and the individual members of the Council.

      . Parish Resolution 7093.

      . Parish Resolution 7112.

      . Parish Resolution 7140.

      . Parish Resolution 7149 (May 10, 1971); 9348 (May 26, 1971); 10,237 (February 14, 1973); and, 10,274 (March 14, 1973).

      . May 10, 1967; June 23, 1971; and March 14, 1973.

      . See footnote 3, above.


source: Caselaw Access Project

license: Public Domain

text:
    James W. HULL, et ux., Plaintiffs-Appellees, v. NORTH AMERICAN VAN LINES et al., Defendants-Appellants.
    No. 11044.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    John W. DeGravelles, Baton Rouge, for plaintiffs-appellees.
    Evans H. Scabee, Ben W. Lightfoot, Baton Rouge, for defendants-appellants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred on July 8, 1974. Liability of the defendants was admitted at the trial on the merits. The district judge awarded Mrs. Barbara Hull the sum of $27,000.00 for personal injuries and Mr. James W. Hull the sum of $4,904.91 for special damages.

Defendants, John C. Bigelow and his employer, North American Van Lines, have appealed and contend that plaintiffs have failed to establish a causal relation between the injuries complained of and the accident and that under these circumstances the above awards are grossly excessive and should be reduced. We affirm.

Mrs. Hull was alone in her car when it was struck from the rear by a large semi-rig truck owned by North American and driven by Bigelow. She claims injuries in three general areas:- lumbar and cervical spine; bladder; and an associated series of conditions referred to as colitis. It is the latter of these three injuries that provokes the most controversy.

With respect to the spinal injuries, it suffices here to say that Mrs. Hull was treated by Dr. Richard Bolton, an orthopedic surgeon. He diagnosed her injuries as a strain to the cervical and lumbar regions of the spine. She was fitted with a cervical collar, continued on muscle relaxants and Tylenol, physical therapy, and was advised to rest and apply heat to the affected area. She remained under Dr. Bolton’s care for this particular injury until October 11,1974. On this latter date, though her injuries had not become completely asymptomatic, she was discharged by Dr. Bolton. The latter’s testimony medically corroborates Mrs. Hull’s testimony relative to severe pain in the area of the neck and back, associated with marked limitation of motion.

On June 6, 1974, approximately a month before the accident, Mrs. Hull underwent a surgical procedure referred to as a transurethral figuration of the trigone, bladder neck and urethra. The trigone is described as a triangular area of the interi- or bladder between the opening of the ureters and the orifice of the urethra. In this procedure the inflamed tissue is removed by electrical cauterization so that it may be replaced by a regrowth of normal tissue. She was treated for this difficulty by Williams D. Wall, IV, a specialist in urology. On June 24, 1974, he noted some “bleeding off” and treated Mrs. Hull with antibiotics and pain pills. The bleeding stopped. However, on July 10, 1974, (two days following the accident) the bleeding recurred and she was ultimately hospitalized for this condition on August 3, 1974. Pertinent to this litigation is the relation, if any, between Mrs. Hull’s chronic bladder disorder and the accident. Dr. Wall deposed that while the accident did not aggravate her overall condition or worsen the inflammation of the bladder, it could have aggravated the healing process by causing bleeding. A fair reading of his testimony, in our opinion, establishes a causal relation between the accident and this particular hospitalization. Further, it should also be noted that throughout this period of time Mrs. Hull was having difficulties with her neck and back.

We now turn to the third alleged injury. On August 19, 1974, Mrs. Hull experienced for the first time severe abdominal cramps, vomiting, and bleeding and passing of mucous through the rectum. As a result of this colonic condition, there followed five hospitalizations, extensive medical treatment, and related expenses. Colitis is basically an inflammatory bowel disease. It is totally unpredictable and its cause is unknown. The crucial question here, preter-mitting etiology of the disease itself, is whether the attack of this disease was brought on by the strain and stress experienced by Mrs. Hull as a result of the accident. We are satisfied that the record amply supports the nervous tension, strain and anxiety suffered by Mrs. Hull immediately following the accident and throughout the period of time she was treated for colitis. With respect to this condition Mrs. Hull was treated by Drs. Cowick, Leo A. Farmer, and J. Kerry Howell, all considered specialists for this particular physical disorder. These doctors were questioned at length concerning the onset of the initial attack. Dr. Howell stated that ruling out an antibiotic reaction or gastrointestinal virus, he would give emotional stress “high consideration” as precipitating such an attack. Dr. Farmer stated that whereas increased emotional stress does not necessarily lead to an aggravation of the disease, “it does tend to recur.”

We have not endeavored to particularize the colloquy between these physicians and counsel for the respective parties. While we are not favored with oral or written reasons from the trial court, the district judge undoubtedly determined that the colonic attacks, suffered by Mrs. Hull were brought on by the emotional stress and strain she endured as a result of the accident.

Proof of a causal relation between an accident and subsequent physical disability is quite often a difficult task. In the present case it is all the more difficult because the cause of colitis itself is not at the present time subject to conclusive medical determination. It is conceded that nervous tension and emotional stress are not now considered as factors causing the disease. They are, however, considered to be factors which precipitate an attack of that disease. On this point, Dr. Howell deposed:

“Q. You state in your letter, ‘It is known, however, that emotional tensions and stress oftentimes cause attacks of idiopathic ulcerative colitis and at times may cause precipitation of an attack of Crohn’s disease.’
A. Yes.
Q. Now, are you making a distinction between causing the disease itself and causing an attack at a particular time?
A. Yes,' right.
Q. Okay. So that if I’m reading you correctly, you’ve said that although you don’t know exactly what causes these diseases that it has been somewhat ruled out as — emotional tension and stress has been ruled out as a cause of the disease itself, is that correct?
A. That’s precisely it.
Q. But on the other hand emotional stress and tension can precipitate a particular attack of the Crohn’s disease?
A. Exactly.”

In Peppers v. Toye Brothers Yellow Cab Company, 198 So. 177, 182 (Orleans App., 1940) the court stated:

“. . . where a person who enjoyed good health suffers an accident and within a short time thereafter a dormant preexisting illness or old injury disconnected with the accident flares up or becomes active, it will be presumed that the flare up was not a coincidence and that it was set in motion as a direct result of the accident. And it is sufficient for the plaintiff, in order to cast the burden of proof upon the defendant, to show by medical testimony that there is a reasonable possibility that the results claimed for did happen.” (Emphasis added.)

See also, Miller v. Allstate Insurance Company, 221 So.2d 908 (1st La.App., 1969); and Slayton v. Grant, 248 So.2d 16 (1st La.App., 1971).

Accordingly, the test is whether plaintiffs have shown that there is a “reasonable possibility” that the colitis attacks were triggered by the emotional stress and nervous tension endured by Mrs. Hull immediately following the accident. Our examination and appreciation of the testimony of these specialists satisfies us that the conclusion reached by the trial judge is a fair and reasonable one and should be affirmed. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Defendants’ claim that the awards made herein are excessive is based primarily on their contention that Mrs. Hull’s hospitalizations, one for the bladder complaints and five for the colitis attacks, are not related to the accident. Having found that these disabilities are related to the accident and viewing the awards accordingly, we do not find them to be excessive and hold that they fall well within the discretion accorded the trial judge. C.C. Art. 1934(3).

For these reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Edwin E. FOSTER, Jr. v. Joseph M. HAMPTON et al.
    No. 11111.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Granted May 26, 1977.
    Michael R. Connelly, Baton Rouge, for plaintiff Edwin E. Foster, Jr.
    Paul Marks, Jr., Baton Rouge, for defendant Joseph M. Hampton, et al.
    Frank A. Fertitta, Baton Rouge, for in-tervenor U. S. Fidelity and Guaranty Co.
    Joseph F. Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, David W. Robinson, and Ben L. Guelfo, Baton Rouge, for defendant Parish of East Baton Rouge.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

In the original action in this case, the plaintiff, Edwin E. Foster, Jr., filed suit on February 4, 1976, against Joseph M. Hampton, a deputy sheriff in East Baton Rouge Parish; J. Al Amiss, sheriff of East Baton Rouge Parish; and Aetna Casualty and Surety Company, the liability insurer of the sheriff and the deputy, for damages resulting from an accident on March 26, 1975, which was alleged to have been negligently caused by Deputy Hampton making a left hand turn into the path of the plaintiff’s motorcycle while the deputy, on duty at the time, was operating a car owned by the sheriff’s department.

Defendants Hampton and Aetna answered this suit. Sheriff Amiss, represented by the same counsel as his deputy and his insurer, filed a peremptory exception of no cause of action based on the grounds that, under LSA-R.S. 33:1433 and the jurisprudence, liability does not attach to a sheriff under the doctrines of respondeat superior, master and servant, or principal and agent for wrongful acts or negligence of a deputy sheriff.

After a hearing on the peremptory exception, judgment was rendered on April 2, 1976, and signed on April 5,1976, dismissing plaintiff’s suit against Sheriff Amiss. The trial judge assigned oral reasons for maintaining the exception.

On May 17, 1976, plaintiff filed a supplemental and amended petition, with leave of court, joining East Baton Rouge Parish, as employer of the deputy, and its liability insurer, Fidelity and Casualty Company of New York, as party defendants. Defendant, the Parish of East Baton Rouge, entered a peremptory exception of no cause of action on June 4, 1976, grounded on the premise that the sheriff is a constitutional elective public official and the Parish has no legal responsibility for the actions of the sheriff or his deputies.

After a hearing on the peremptory exception, judgment was signed on July 14, 1976, dismissing plaintiff’s suit against East Baton Rouge Parish. The judge assigned oral reasons for this dismissal. Thereafter, the parish’s insurer filed a peremptory exception grounded on the court’s judgment dismissing the parish as a defendant, i. e., if there is no liability on the part of the parish, there can be no liability on the part of the insurer because the insurer’s liability is a contingent one. On August 26, 1976, the court signed a judgment sustaining the insurer’s peremptory exception, assigning oral reasons therefor.

Appeals were taken from all three judgments of dismissal. On October 13, 1976, the appeals were consolidated.

The appellant contends that the trial court erred in dismissing his suit against the sheriff. The court based its decision on LSA-R.S. 33:1433 and the cases of Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939) and Andry v. Parish of Orleans, 309 So.2d 814 (La.App. 4 Cir. 1975).

LSA-R.S. 33:1433 reads in part as follows:

“No sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies, or any person commissioned as deputy sheriff by him, beyond the amount of the bond or limits of liability insurance furnished by said deputy sheriff, unless said deputy sheriff in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.”

In the Gray case the plaintiff, a pedestrian, was struck by the automobile negligently driven by the deputy while transporting an arrested man to jail. The court, in denying recovery, stated the following principle of law:

“In discussing this point it must be borne in mind that no liability attaches to the defendant sheriff under the doctrine of respondeat superior, or under the doctrines of master and servant and principal and agent. The relation between a sheriff and his deputy is an official and not a private relation. The deputy is not a representative of the sheriff in his individual capacity, but he is a public officer whose authority and duty are regulated by law. As to the public, whose servants these officers are, the acts and omissions of a deputy sheriff are the acts and omissions of the sheriff himself. So far as the responsibilities of the office are concerned, the sheriff is liable for the acts and omissions both of himself and his deputy. Rich v. Graybar Electric Co., 125 Tex. 470, 84 S.W.2d 708, 102 A.L.R. 171, and annotations 102 A.L.R. 182, ix. .
“In order to impose liability on the sheriff and his official surety for the alleged wrong of the deputy sheriff, the petition should set forth facts showing that the alleged wrongful act of the deputy was committed while he was in the performance of an official duty and must have resulted from the wrongful manner in which such official duty was performed. This the petition does not do.” 188 So. at 724-725.

In the Andry case suit was brought against the deputy criminal sheriff and the criminal sheriff alleging that the deputy severely injured the plaintiff when he attempted to escape. The petition alleged” that the deputy used excessive force in apprehending an escaping prisoner, thus breaching an official duty. The Court of Appeal found that a cause of action against the sheriff was stated, and reversed the trial court, remarking at 309 So.2d page 815:

“In order for the sheriff to be required to respond to the allegations that he is responsible for the wrongful action of a deputy, the petition must allege that the deputy’s act was committed while he was performing an official duty and must have resulted from the wrongful manner in which such official duty was performed.”

The case of Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4 Cir. 1970), a case nearly on all fours with the instant case, was a suit for damages resulting from an intersectional collision alleged to have been negligently caused by the acts of the deputy. In Nieison the court maintained the peremptory exception of no cause of action and stated:

“The plaintiff is alleging only a vicarious liability of the Sheriff by virtue of the negligence of the Deputy Sheriff. These acts of negligence address themselves to the alleged negligent and/or improper and/or careless, reckless and negligent manner in which the Deputy Sheriff operated his vehicle.”

The Nielson case clearly points out that our jurisprudence draws a distinction between the liability of a sheriff for malfeasance, nonfeasance or improper performance of an official duty by a deputy and the wrongful or negligent acts of a deputy while in the performance of a nonofficial act.

There is no merit in the appellant’s position that the protection granted to sheriffs is a governmental immunity, which was abolished by the Louisiana Constitution of 1974, article 12, section 10(A). Sheriffs never had immunity from suit. Their protection against liability is merely a legislative restriction to liability for breach of an official duty. See Andry v. Parish of Orleans, supra. The cases cited by the appellant are inapposite.

Therefore, we find that the trial court was correct in maintaining the exception of no cause of action against the sheriff, J. A1 Amiss.

With regard to the maintaining of the exception of no cause of action against East Baton Rouge Parish, we likewise find that the ruling of the trial court was correct.

The Court is of the opinion that as a matter of law, East Baton Rouge Parish exercises no power or discretion in the functioning independently of the governing body of the parish. La.Const. of 1974, art. 5, sec. 27. There can be no vicarious liability on the part of the parish for the acts of the sheriff or his deputies. See Nielson v. Jefferson Parish Sheriff’s Office, supra, at page 94.

The appellant’s argument that deputy sheriffs must be considered civil service employees of the City Parish government in East Baton Rouge Parish finds no support in the law. Our Supreme Court, in the case of Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (La., 1967), acknowledges the unique metropolitan form of the City of Baton Rouge and the Parish of East Baton Rouge and specifically calls attention to the fact that the office of the parish sheriff functions “. . entirely separate therefrom, the limits of the city and parish not being co-extensive.”

With regard to the exception filed by the parish’s liability insurer, we also find that the trial court’s ruling was correct, because where there is no liability on the part of the Parish of East Baton Rouge, the insured, there can be no liability on the part of the insurer under its policy. See Smith v. Kelly Labor Service, 239 So.2d 685 (La. App. 4 Cir. 1970), writ ref. 257 La. 173, 241 So.2d 531 (La., 1970).

Accordingly, we affirm the judgments of the trial court herein maintaining the exceptions and dismissing the suit of the plaintiff as to these defendants. Costs of appeal in the consolidated appeals are assessed against the appellant.

AFFIRMED.


author: COVINGTON, Judge:

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Lucille Tranchina ROMANO et al., Defendants-Appellees.
    No. 11118.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.

      Wm. W. Irwin, Jr., Jerry F. Davis, Alva J. Jones, Baton Rouge, J. Bryan Miller, Alvin J. Liska, New Orleans, Johnie Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Clint L. Pierson, Jr., Covington, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an expropriation proceeding by the State of Louisiana through the Department of Highways, in connection with the construction of a portion of Interstate Highway 12 in St. Tammany Parish, Louisiana. On November 16, 1971, the Department of Highways obtained an order under the “quick-taking” statute, LSA-R.S. 48:441 et seq., for the expropriation of a strip of land consisting of 18.431 acres from a, 120 acre-tract in Sections 3 and 4, T7S, R10E, owned by the defendants, Lucille Tranchina Romano, Stephanie Ann Romano Mack, Terrance Mary Romano and Richard T. Romano. After the taking, the tract was divided into two parcels: the portion to the north, consisting of 55.646 acres, continued to have access along the south side of State Route La. 1085; the southerly portion, irregular in shape and consisting of 45.739 acres, was left “landlocked”, without access to any public road. The Department deposited the sum of $15,866.00 in the registry of the court as the estimated just compensation due the defendants for the property taken. The defendants withdrew the funds deposited and filed an answer to the expropriation proceeding in which they placed at issue the value of the property taken, whether severance damages have resulted to the remaining property by the expropriation and the amount of severance damages sustained thereby.

The trial court found the area of property taken from the defendants to consist of 18.43 acres and also found the southerly portion, consisting of 45.92 acres, to be landlocked. The court held the defendants to be entitled to $750 per acre, or the sum of $13,822.50 as the value of the property taken, and to severance damages of $1,050.00 per acre, or the sum of $48,216.00, for a total award of $62,038.50, subject to a credit for the amount deposited.

In appealing from the judgment rendered in accord with these findings, the Department complains of the trial court’s fixing of the value of the property taken, the fixing of the severance damages and the fixing of the fees of the expert witnesses. We amend and affirm.

Value of the Property Taken

The record shows that all expert witnesses who appraised the subject property considered its highest and best use to be rural residential purposes, developed into small acreage homesites, otherwise described as “speculative rural property.” This classification is consistent with the jurisprudential requirements of “best and highest use.”

It is well settled that potential use of expropriated property may be deemed its best and highest use for purposes of evaluation provided that there is a reasonable expectation that the property may be so used, developed or employed in the reasonably foreseeable future. This court has said that “where potential use is reasonably prospective, or reasonably certain to the extent that such use is removed from the realm of guesswork, speculation and conjecture, such potential use may be considered the best and highest use for fixing value in an expropriation proceeding”; State, Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765, 771 (La. App. 1 Cir. 1974), writ ref. 307 So.2d 373 (La., 1975).

There is a substantial difference in the opinions of the Department’s appraisers from those of the defendants’ appraisers as to the value of the property taken.

Carr T. Dowell, III, a real estate appraiser of New Orleans, testified on behalf of the Department. Using the market data-comparison method he found the value to be $525.00 per acre, or a total of $9,676.00 as the total value. Dowell considered several market transactions, but relied primarily on three comparables with certain adjustments for time and size in arriving at his valuation. His first comparable was a sale from Carolyn Burns Bradley to Thomas J. Gross, August 26, 1970, of a 38.1-acre tract for $19,000.00 or $499.00 per acre, located about one mile from the subject property, with adjustments indicating $505.00 per acre for subject property. The second was a sale from Mamie Raiford Parker to Shannon Harrison, April 17, 1971, of a 40-acre tract for $20,000.00 or $500.00 per acre, located about IV2 miles from the subject property, with adjustments indicating $495.00 per acre for subject property. As his third comparable Dowell used a sale from Russell F. King to Fritz G. Lindley, September 21, 1968, of 40.04 acres for $28,-000.00 or $450.00 per acre, located about three miles from the subject property, indicating $530.00 per acre for subject property, after adjustments. The sales were each updated for time and adjusted for size differentiation, and based on these compara-bles Dowell estimated the market value of the subject property to be $525.00 per acre.

The Department also offered the testimony of Edward J. Deano, a real estate appraiser of St. Tammany Parish. Also using the market data-comparison method and three comparables including the first two that Dowell had used, Deano fixed a valuation of $500.00 per acre, or a total of $9,215.00. Instead of the King-Lindley comparable used by Dowell, Deano used a sale of 31 acres from Jack H. Vermillion to Alvin P. Landry, in January of 1970, having a sale price of $9,000.00 or $290.00 per acre. Based upon these comparables, he fixed a valuation of $500.00 per acre on the property taken. He testified that he did not make a breakdown on adjustments for size, topography or time.

Frank J. Patecek, a real estate appraiser of St. Tammany Parish, testified on behalf of the defendants. Patecek used all of the sales in the general area involving tracts larger than five acres during the 12-month period prior to the date of the taking, November 16, 1971. Using the market data-comparison method, he found the value to be $750.00 per acre, or a total of $13,961.00. The only comparable used by Patecek that had been used by the Department’s appraisers was the sale of Parker to Harrison in April of 1971, but in using it he found an indicated value of $694.93 per acre for the subject property. He used as his other comparables a sale from Williams to Ship-pen, January 5, 1971, 10.76 acres for $7,801.00, or $725.00 per acre, located lVi miles north of the subject property, indicating a value of $780.53 per acre for subject property; a sale from Harrison to Jackson, April 27, 1971, 19.18 acres for $10,000.00 or $531.37 per acre, located % mile west of the subject property, indicating a value of $710.05 per acre for subject property; a sale from Lampier to Shippen, November 10,1971,10.75 acres for $5,600.00, or $520.93 per acre, located 1 mile north of subject property, indicating a value of $739.72 per acre for subject property; a sale from Parker to Raiford, November 28, 1971, 6 acres for $6,000.00, or $1,000.00 per acre, located on the Ponchatoula-Madisonville highway, indicating a value of $770.00 per acre for subject property; a sale from Goodbee to Flanagan, November 6, 1971, 5.665 acres for $5,665.00, or $1,000.00 per acre, located V2 mile north of subject property, indicating a value of $770.00 per acre for subject property. In the comparables, Mr. Patecek made-adjustments for location, size, topography and elevation, and time where he thought such to be proper.

Kermit Williams, a real estate appraiser of Baton Rouge, testified for the defendants. Using the market data-comparison method, he found the value to be $800.00 per acre, or a total of $14,745.00 as the total value of the property taken. Williams examined nine comparable sales of similar tracts of land in the area. All of his compa-rables were adjusted to bring them into greater comparability with the subject tract. The sales used as comparables ranged in value from $500.00 to $1,700.00 per acre. However, a size adjustment was necessary because the subject property was larger than the comparable sales. Adjustments were also made to take into consideration the difference in time, location, topography and access. He also used the sale from Parker to Harrison, which was the only comparable used by all four of the appraisers, and in so doing found an indicated value of $785.00 per acre for the Romano tract. In addition, Williams used the Bradley-Gross comparable which the plaintiff’s appraisers had used. Williams used two different comparables, i. e., a July 15, 1970, sale from Matlock to Smith, involving four acres at a price of $8,500.00, or $1,700.00 per acre; and a December 9,1970, sale from Davis to Bagley, in which 4.455 acres were sold at a price of $4,500.00, or $1,010.00 per acre.

The trial court concluded that the 18.43 acres taken by the Department had a value of $750.00 per acre as of the date of the taking, November 16, 1971.

The trial court pointed out that:

“The Department’s two appraisers, Mr. Deano and Mr. Dowell, appraised the property at $500.00 and $525.00 per acre, respectively. The two appraisers for the landowners, Mr. Williams and Mr. Pate-cek, appraised the property at $800.00 per acre and $750.00 per acre, respectively. “On behalf of the landowners, Mr. Pate-cek used all of the sales that involved tracts in excess of five (5) acres that took place during the one (1) year period prior to the date of the taking in this case. The Court particularly relies on the sale of Parker to Harrison and the resale by Harrison to Jackson. The Court notes that the evidence shows that the first sale involved a sale of forty (40) acres for approximately $500.00 per acre with a great deal of the 40 acre tract being low and marshy. The parent tract in this case had no low, marshy areas. The resale to Jackson was 20 acres for $531.00 per acre and a great deal of the 20 acres resold to Jackson was included in the low, marshy area.”

The appellant contends that the trial court committed manifest error in reaching its conclusion, particularly complaining that the Patecek comparables were not as acceptable as the comparables used by the Department’s appraisers. In his testimony Mr. Patecek fully explained his compara-bles, the adjustments that he made and how he arrived at his valuation of $750.00 per acre. He explained that he did not use the Bradley-Gross (1970) and King-Lindley (1968) sales because he found a sufficient number of comparables within the year of the taking. We have reviewed the adjustments made by Mr. Patecek and they are not subject to the criticism levelled at the adjustments in the case of State, Department of Highways v. Eichelberger, 141 So.2d 93 (La.App. 1 Cir. 1962). In Eichel-berger the trial court had rejected the appraisal of the Department’s expert because the appraiser admittedly used “arbitrary” adjustments. The appellate court found no manifest error in the trial court’s rejection. There has been no “arbitrary” adjustments made by Mr. Patecek. The comparables used by the defendants’ appraisers were valid comparables involving similar property in the particular area. There is no basis for the Department’s claim that dissimilar properties were used by the landowners’ appraisers.

We have thoroughly studied the appraisals and testimony of each real estate appraiser and conclude, as did the trial court, that the landowners’ experts’ reports are more persuasive than the Department’s experts’ reports as to the value of the property taken, since they show that each comparable was logically adjusted for size, time, topography and shape, and they selected more meaningful comparables.

The more reliable and approved method for determining the fair market value of property taken is to consider comparable sales, adjusting them to compensate for their relative good and bad features with regard to the property expropriated. See State, Department of Highways v. Bjorkgren, 147 So.2d 905 (La.App. 1 Cir. 1962).

Just compensation for property taken is the fair market value thereof according to its highest and best use, immediately prior to the taking, without any enhancement by virtue of the purpose of the taking. State, Department of Highways v. Hoyt, 284 So.2d 763 (La., 1973); State, Department of Highways v. Trippeer Realty Corporation, 276 So.2d 315 (La., 1973).

Under the “quick-taking” expropriations, such as this, the market value of the property taken is determined as of the time of the taking. LSA-R.S. 48:453, State, Department of Highways v. Trippeer Realty Corp., supra; see also State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3 Cir. 1969), writ ref. 254 La. 14,222 So.2d 67 (La., 1969).

In an expropriation proceeding the trial court is not required to accept or reject the testimony of any particular witness, but may give whatever weight he considers appropriate to the testimony of any and all witnesses in making his factual determination of the value of the property taken. He may reach a conclusion which does not coincide with the testimony of any witness. State, Department of Highways v. Thurston, 338 So.2d 154 (La.App. 2 Cir. 1976); see also State, Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1 Cir. 1971).

The fixing of value of the property by the trial court will not be disturbed unless manifestly erroneous. See State, Department of Highways v. Romano, 316 So.2d 129 (La.App. 1 Cir. 1975). We find no manifest error in the instant case.

Severance Damages

The record shows that all witnesses who appraised the subject property considered that the remaining southern portion consisting of the 45.92 acres was detrimentally affected by the expropriation because said portion was left “landlocked,” without access to a public road. See e. g., Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970). The Department’s complaint is that the trial court manifestly erred in not awarding severance damages as calculated by its appraisers rather than by the landowners’ appraisers.

The court concluded that the 45.92 acre tract had a value of $150.00 per acre as of the date of the trial, but that it would have had a value of $1,200.00 per acre were it not landlocked and, based upon those figures, fixed the damages at $1,050.00 per acre, or a total of $48,216.00 for that item.

The trial court stated in its reasons for judgment that:

“It appears to the Court that the landlocked portion in this case had at most a speculative minimal value of $100.00 per acre after the taking. The Court concludes that there is virtually no open market for this landlocked property. Perhaps an adjoining owner would be interested in the purchase of this property, but that is mere speculation and the adjoining owner could demand that he only pay a minimal price.
“The Court also reaches the conclusion that the landlocked portion did not increase in value from the date of the taking until the date of the trial. This is borne out by the lack of sales of landlocked parcels to other than adjoining owners. However, the Court feels that Mr. Williams’ estimate of the value on the date of the trial of $150.00 per acre is the value to be used in determining severance damages.”

Dowell used two sales of landlocked property to fix severance damages, first a sale from Vermillion to Landry on December 23, 1969, it being a 32.3-acre tract located about IV2 miles from the subject property; and second, a sale from McDonald to Graham on May 30, 1969, affecting an 18.07-acre tract located about % mile west of the subject property. Both were sales of landlocked property to abutting landowners. Dowell determined the Vermillion sale to be at $278.00 per acre and the McDonald sale to be at $250.00 per acre. His final estimate of severance damages of $12,629.00, based on the remainder having á value of $250.00 per acre as of November 16, 1974. He made no calculation as of the date of the trial.

Deano estimated the severance damages to be $13,722, based on the sales of other landlocked property, using a sale from Par-enton to Templeton in October of 1968, in which 40 acres having no public access sold for $300.00 per acre, and the sale from Vermillion to Landry in January of 1970, in which 31 acres having no public access sold for $290.00 per acre. Deano took into consideration that Landry was an abutting landowner and estimated that from these two sales the subject remaining property would sell in the market for $200.00 per acre.

One of the landowners’ appraisers, Patecek, used the “cost-to-cure” method to determine severance damages, and estimated that the landlocked parcel would have little value after the taking. The trial court preferred the estimate of Kermit Williams, the other appraiser used by the landowners, who used the market data-comparison method. Williams fixed severance damages as $1,050.00 per acre, or total severance damages of $48,216.00, as of the date of the trial.

The Department asserts that the trial court committed manifest error in not following the judicial method of calculating severance damages by calculating the difference between the fair market value of the remaining property immediately before and immediately after the taking. The appellant further asserts in this connection that the trial court erroneously fixed the fair market value as of the date of the trial, allowing for time increases in value from November 16, 1971, to April 15, 1975. The appellant is correct in its contention. As stated by the court in State, Department of Highways v. Babineaux, 189 So.2d 450 (La. App. 3 Cir. 1966):

“. . . (T)he landowner is entitled to any severance damages sustained by the remainder of his property left after the taking, being the difference between the market value of such remainder just before the taking and its value at the time of trial. LSA-R.S. 48:453. State through Dept. of Highways v. Lancon, La.App. 3 Cir., 174 So.2d 257, and cases cited therein.”

The statutory law in effect when this suit was filed provided, in part, that:

“Damage to the remainder of the property is determined as of the date of the trial.” LSA-R.S. 48:453 (emphasis supplied).

Thus, one evaluation to be used in computing severance damages, i. e., the “before taking value” is “locked in” at the time of the taking and remains constant, but it is not judicially fixed until judgment. It is only the value of the property, in its affected state, that is allowed to fluctuate pursuant to the vicissitudes of the market until that amount is determined as of the time of trial.

Therefore, adopting the trial court’s finding that the 45.92 acres had a value of $150.00 per acre at the time of trial, as compared to a value of $750.00 per acre at the time of the taking, the correct award for severance damages is $600.00 per acre, or $27,552.00. The judgment is amended to that extent.

Expert Witness Fees

Lastly, the Department challenges the award of expert witness fees, contending that the awards to Patecek and Williams were improper since they merely conform to the amounts agreed to between the appraisers and the defendants, and since neither appraiser testified as to the amount of time spent in the preparation for trial or in compiling his report. The trial court awarded fees of $1,800.00 and $1,700.00 for defendants’ two expert appraisers, $50.00 for defendants’ surveyor’s court appearance and $625.00 for the cost of the survey. The Department argues these fees are excessive and cites several cases, including State, Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2 Cir. 1975), writ den. 319 So.2d 443 (La., 1975); State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2 Cir. 1975), writ den. 318 So.2d 60 (La., 1975), in support of its argument.

In expropriation proceedings, the condemning authority is taxed with the reasonable costs of the testifying expert witness retained by the landowner to help him obtain his just compensation. See State, Department of Highways v. William T. Burton Industries, Inc., supra, at 845.

There are several principles of law applicable in determining expert witness fees. The amount of time consumed and the amount charged the landowner are only some of the factors to be considered in determining the fee of an expert. State, Department of Highways v. Oil Mark Corporation, 324 So.2d 606 (La.App. 2 Cir. 1975), writ den. 326 So.2d 380 (La., 1976). Fees to be paid to expert appraisers are based not only upon their court appearance, but also upon their preparatory work. State, Department of Highways v. William T. Burton Industries, Inc., supra, at 845. However, time spent in consultation which only assists the landowner’s counsel in preparing for the litigation can not be taxed as court costs. State, Department of Highways v. Whitman, supra, at 925.

In assessing expert witness fees, each case must be decided on its own peculiar facts. However, in order to change the amount awarded as expert fees, the appellate court must find that the trial judge abused the sound discretion properly accorded him in such matters.

In the instant case, the appraisals and trial testimony of both of the defendants’ experts speak for themselves. Both are indicative of a great deal of preparation and expertise and could not have been accomplished without considerable time and effort on their part. In view of the expertise of the appraisers, the time spent on their appraisals, the difficulty of the appraisal, the amount involved in the award, and the degree to which the appraisals aid the court in its decision, we find no abuse of discretion in the awards.

The Department’s complaint about the assessment of an expert fee for the surveyor is without merit. It was squarely held in State, Department of Highways v. William T. Burton Industries, Inc., supra, at 846, that a surveyor witness’ fee for his court appearance and preparatory work connected therewith is taxable as court costs. We find no manifest error in the award for expert witnesses.

For the foregoing reasons, the judgment of the trial court is amended by reducing the severance damages to $27,552.00; it is otherwise affirmed. The Department shall pay all costs for which it may be" legally assessed.

AMENDED AND AFFIRMED.

      . The use of this method for such purposes is limited to “. a most unique situation . wherein the ascertainment of market value of the facility is not possible.” State, Department of Highways v. Mason, 254 La. 1035, 229 So.2d 89 (1969).


text:
    Spencer G. WALL, Appellant, v. COMMUNITY IMPROVEMENT AGENCY, Appellee.
    No. 11127.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Kermit Frymire, New Orleans, for appellant Spencer G. Wall.
    Revius Ortique, Jr., and William H. For-man, Jr., New Orleans, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

Spencer G. Wall, the appellant, is appealing an opinion of the Louisiana State Civil Service Commission which denied his appeal from a decision of the Community Improvement Agency of New Orleans sustaining a determination by the appointing authority that his job performance for the period ending March 31, 1975 was rated “unsatisfactory” due to low production. We affirm the Commission’s opinion.

The appellant was one of several persons employed by the Community Improvement Agency of the City of New Orleans in a job classification of “Rehabilitation Counselor.” The Agency, generally known as the' “Urban Renewal Agency,” has as one of its principal duties the renovation and rehabilitation of neighborhood structures, particularly private homes. In order to carry out its responsibilities, the Agency developed a system whereby private homes were inspected so that the homeowners might qualify for loans for the improvement of their homes. Such inspections were made by Rehabilitation Counselors, one of whom was the appellant. Mr. Wall was assigned to the “Central City Field Office,” under the supervision of Joseph Putnam, the Project Officer.

In accordance with the Civil Service regulations (Rule 10.2) and Agency policy, Mr. Wall’s performance as an “employee” was evaluated periodically and he was given a “service rating,” as was all permanent employees who have worked 90 days or more in the particular position. The evaluation period in question ended on March 31, 1975. On April 3,1975, a letter of notification was sent to Mr. Wall informing him that:

“Your job performance for the period « ending March 31, 1975, has been determined unsatisfactory for the following reasons:

1. Your assignments were not completed in a timely manner.
2. Your work has been careless thereby resulting in frequent revisits on rehabilitation inspections.
3. You have expressed an extreme negative attitude toward your immediate supervisor and the Project Officer.
4. You have failed to follow direct orders given to you by your immediate supervisor or the Project Officer.
5. You have failed to properly document your time out of the office on the register provided for that purpose.
6. You have failed to keep appointments made with clients.
7. You have on occasion failed to follow the proper procedure for grievances.
8. Your work production does not meet the standards established by this Agency for your position.”

On May 2, 1975, the appellant gave proper notice of his appeal of the “unsatisfactory” service rating, and requested that a hearing be held. After administrative hearing, the Agency sustained the “unsatisfactory rating”, primarily on the basis of low work production.

At the hearing held on May 15, 1975, at which Francis P. Keevers served as the “Hearing Officer,” the work production of the appellant was compared with that of the other rehabilitation officers, and his work productivity was demonstrably lower than that of other employees who performed similar duties.

Subsequently, Mr. Wall appealed to the Louisiana Civil Service Commission. The Commission held hearings on April 6, 1976, to review the rating. On July 1, 1976, the Commission ruled that:

“As to the primary reason given for the unsatisfactory rating, and the only reason upheld in the agency administrative hearing, i. e. low production, the Commission finds the evidence convincing that its assignment was justified. As to the other reasons assigned for the unsatisfactory rating there was no evidence and those charges must fall.
“Accordingly, the appeal is denied and the unsatisfactory service rating stands.”

It is from this opinion that Mr. Wall has appealed.

We have carefully studied the record in this matter, including the transcript of the Commission’s hearing, so that we could review the facts, as well as the law, which the Louisiana Constitution of 1974 requires us to do. La.Const. of 1974, Art. 10, Section 12. We find that the facts amply support the opinion of the Commission and we find no error of law therein.

Our review of the evidence establishes that the appellant’s work production did not measure up to the agency’s standards. Joseph Putnam, the Project Officer, who was the appellant’s supervisor, testified that Mr. Wall’s work output or productivity was low. The appellant never managed to perform the standard of two (2) housing inspections and write-ups per week. Mr. Putnam wrote numerous memoranda to the appellant concerning the incompleteness of his work and his low productivity. Jesse A. Dupart, Director of Operations, who actually signed the notification letter to the appellant, also testified to counseling Mr. Wall with regard to his low work production, and efforts to assist Mr. Wall in bringing his work performance up to standard. The testimony of King S. Wells, Deputy Executive Director, was to the same effect. Francis P. Keevers, Executive Director, testified that based on the production records and the other evidence he upheld the unsatisfactory service rating. Statistics which showed Mr. Wall’s work production to be substantially lower than that of similarly classified employees were also introduced at the hearing.

The appellant offered the testimony of George Richard and Lucien P. Fernandez, two fellow employees, to the effect that one house inspection per week was a reasonable performance of the job. Mr. Richard indicated that two inspections per week was the “general average.” The appellant testified that of 97 cases in the office during the period in question he completed 26 new inspections and 15 reinspections. The agency’s records do not support the appellant’s “personal records” concerning this work period. He admitted that he did not do two inspections per week. The appellant also produced the testimony of several homeowners that the appellant had performed inspections of their homes in an efficient and helpful manner. John Armant, who had been Mr. Wall’s supervisor during a prior rating period, gave general testimony about the duties of rehabilitation inspectors. He had no knowledge of Mr. Wall’s performance during the rating period in question.

From the record it appears that the standards of performance were clearly established and were made known to Mr. Wall. On numerous occasions supervising personnel counseled with Mr. Wall in an attempt to improve his work output. He was fully advised that his work production was not up to standard. It appears that his fellow employees in comparable positions were much more productive. There is ample evidence to support the conclusion that Mr. Wall should be rated “unsatisfactory” due to below-standard work production. It is clearly established that Mr. Wall’s work production level was unsatisfactory.

Accordingly, we affirm the opinion of the Commission at appellant’s costs.

AFFIRMED.


text:
    Fred WOMACK v. DAY SANITARY SERVICE, INC.
    No. 11138.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Not Considered May 26, 1977.

      Macrino R. Trelles, Jr. and R. C. Edwins, Baton Rouge, of counsel, for plaintiff-appellant.
    Arthur H. Andrews, Baton Rouge, of counsel, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This action for personal injuries was originally brought by the plaintiff, Fred Wom-ack, on May 22, 1975 against the defendant, Day Sanitary Service, Inc., for damages allegedly sustained on December 16, 1974 by the plaintiff when he tripped over a wire tying down a portable toilet. The injuries were allegedly caused by the negligent manner in which the portable toilet was left tied down by defendant Day Sanitary, which was allegedly a subcontractor for plaintiff’s employer, Bechtel, Inc., maintaining the portable toilets on the work premises. On August 1,1975, defendant Day Sanitary filed an answer in the nature of a general denial, together with an affirmative defense of contributory negligence. Thereafter, on October 20, 1975, plaintiff, without obtaining leave of court, filed a pleading purporting to be a “supplemental and amending petition” in which the appel-lee, Wilbur Crane d/b/a Travel Can Company, was named an additional defendant. It was not until December 31,1975 that Crane was served. Then, on January 12, 1976, plaintiff dismissed his action against Day Sanitary without prejudice. Subsequently on April 30, 1976, the appellee filed an exception entitled “Lack of Jurisdiction in Personam and Insufficiency in Service of Process,” setting out that the appellee was named as defendant by supplemental and amending petition, but that the pleading, was ineffectual because LSA-C.C.P. art. 1151 requires prior leave of court to file such a pleading and no court order was obtained. On the same date the appellee also objected to the venue of the court, but the venue objection was later withdrawn.

On June 25, 1976, the trial judge sustained the exception to the jurisdiction and process, and dismissed the plaintiff’s action without assigning written reasons for judgment. Judgment of dismissal was signed on June 28, 1976, and the plaintiff has appealed this judgment. We affirm.

The record shows, and it is not disputed by plaintiff, that no court order or leave of court was obtained permitting the amended petition in the instant suit. The plaintiff-appellant does not contend that the appel-lee, Wilbur Crane d/b/a Travel Can Company, granted consent to amendment of the pleadings; however, he does contend that he obtained the written consent of the original defendant, Day Sanitary, to the amendment. The appellant also contends that the appellee could not have been prejudiced by the failure to obtain previous permission of the court, because “had he applied to the trial court for permission to amend it would no doubt have been granted automatically.”

Under the provisions of LSA-C.C.P. art. 1151, a plaintiff may amend his petition without permission of the court anytime before the answer is served; after the serving of the answer, a plaintiff must obtain leave of court, or written consent of the adverse party, for amendment of the petition.

We have previously had occasion to rule in the situation where leave of court was not obtained when such leave was required. In Campbell v. Wright Adams Realty Co., 220 So.2d 755 (La.App. 1 Cir. 1969), the plaintiff filed suit on' May 7, 1965, against defendants, Willis G. Adams and Wright Adams Realty Co. as a domestic corporation. Answer was filed, and the matter came on for trial on May 10, 1966. On the trial the evidence showed that Wright Adams Realty Co. was a partnership composed of Willis Adams and Wright Adams. Defendants thereupon filed a peremptory exception based on the failure to join the partners and partnership as defendants. The court sustained the exception of non-joinder of an indispensable party and dismissed as of non-suit. No judgment of dismissal was signed by the court. Thereafter, on February 6, 1967, the plaintiff, without leave of court or written consent of the adverse party, amended his petition making the partnership and the individual partners defendants in the action. In Campbell, we ruled:

“It has been rightly held that an amended petition filed without leave of court when such permission is required, may not be considered. In legal contemplation an amended petition so filed is totally without effect and is deemed not to have been filed at all. La. C.C.P. Article 1151; Martino v. Fair burn, La. App., 71 So.2d 358. It follows that the amended petition filed herein on February 6, 1967, is totally lacking in legal efficacy.”

The case of Montgomery v. Red Ball Motor Freight, Inc., 245 So.2d 443 (La.App. 4 Cir. 1971), relied upon by appellant is clearly inapposite. In Montgomery the suit was against multiple defendants. Some of the defendants answered and one defendant, the plaintiff’s medical payments insurer, filed an exception. Then, without permission of the court or consent of any of the defendants, the plaintiff amended the petition to allege an alternative claim against the plaintiff’s insurer for uninsured-motorist coverage. The court found that since the insurer had only excepted and not yet answered, the amended petition was applicable to the insurer. The court considered the amended petition only for purposes of the exception and remanded the case to the trial judge, saying:

“It is obvious from the record that the grounds of the objection can be removed by a proper amending petition supplying the necessary alternative allegations of negligence of the unidentified driver alone so as to make him solely liable. The trial judge should have afforded plaintiff an opportunity to properly amend his petition. Campbell v. Wright Adams Realty Co., 220 So.2d 755 (La.App. 1st Cir., 1969).”

Inasmuch as the answer had been filed in the instant case and the plaintiff amended his petition without leave of court, we must hold the amended petition filed herein without legal effect, unless the plaintiff can establish that he had the written consent of the adverse party for such amendment.

To show that he had the requisite consent, the plaintiff sets out in his brief at page 1:

“After issue was joined both plaintiff and defendant made extensive discovery in an effort to definitely ascertain the owner of the toilet in question and the party responsible for the wire. On or about August 14, 1975, defendant, Day’s Sanitary Service, Inc., through its attorney, John S. White, wrote to plaintiff’s counsel advising that Day had nothing to do with plaintiff’s injury and that Travel Can Corporation actually maintained the toilet in question. In support of this letter, Mr. White enclosed statements from the job supervisor and the job steward for plaintiffs employer verifying this fact. On October 17, 1975, defendant’s counsel again wrote plaintiff’s counsel informing that Travel Can Corporation and not Day’s Sanitary Service was the owner of the toilet in question. After further investigation, plaintiff filed a supplemental and amending petition on October 20, 1975 bringing Travel Can Corporation as a defendant . . .”

The letters referred to by plaintiff’s counsel are not in the record and there is nothing in the record to indicate that defendant Day Sanitary consented to the amendment of the pleadings.

On the question of written consent, the appellee asserts that the letters do not show that Day Sanitary’s counsel consented to the amendment. In appellee’s brief we find at page 3:

“Quoting in part from Day’s Sanitary Service, Inc.’s attorney letter of October 17, 1975, addressed to the plaintiff’s attorney, his position is clearly evident: “ ‘My position is and has been that you sued the wrong company as owner of the portable unit involved in your client’s accident; and that the owner of that unit appears from the investigations made by you and by me to be Travel .Can; but that it is extremely doubtful that even that company is liable to your client. I do not want to be understood as suggesting that you sue anybody.’ ” (Emphasis supplied in the brief)

It seems clear that the plaintiff did not have the written consent of the only defendant at that time, Day Sanitary, to file an amended petition. There is in fact nothing in the record to show any consent to the filing of amended pleadings.

We feel that where the plaintiff claims to have obtained the written consent of the adverse party to an amendment of the pleadings, he has the burden of proving such consent. The plaintiff has failed to sustain that burden in the instant case.

In response to the appellant’s assertion that the trial court would no doubt have automatically granted him permission to amend the petition if he had applied for it; we need only say no such application was made.

We do not believe that the mandate of LSA-C.C.P. art. 5051 to construe liberally the procedural articles of the code extends an open invitation to the courts to ignore the express rules of procedure. Article 1151 of the Code of Civil Procedure expressly draws a distinction between the amendment of the petition prior to answer being served and the amendment after the answer has been served. There is sound procedural basis for the distinction. For instance, absent a requirement of the permission of the trial court to amend the petition to add another party defendant would leave open the opportunity for the plaintiff to amend his petition to bring in an additional defendant at any time without permission of the court. Such an amendment could then take place at the last minute before the trial date, thus delaying the ultimate outcome of the case, and taking away from the trial judge that necessary control which he must have over the proceedings. Unrestrained amendment powers left in the hands of the parties could only lead to disruption of the orderly judicial process. Justice incorporates, rather than rejects, the concept of orderly procedure.

For the foregoing reasons, we affirm the trial court’s judgment, sustaining the exception and dismissing the plaintiff’s suit herein, at plaintiff-appellant’s costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Jeffrey Allen BARBAY and Kathleen Wall Barbay v. The PARISH OF EAST BATON ROUGE.
    No. 11113.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 10, 1977.
    John W. DeGravelles, Baton Rouge, of counsel for plaintiffs-appellees.
    Joseph F. Keogh, Parish Atty., John R. Sheppard, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit filed by Jeffrey A. Barbay and his wife, Kathleen W. Barbay, against the Parish of East Baton Rouge for damages sustained by plaintiffs when their home in East Baton Rouge Parish was flooded by raw sewage on three separate occasions. The Trial Court rendered judgment in favor of plaintiffs in the sum of One Thousand Four Hundred Ninety nine and 31/100 ($1,499.31) Dollars for property damages and in the sum of Two Thousand Five Hundred and no/100 ($2,500.00) Dollars to each of the plaintiffs for mental anguish and anxiety, worry, embarrassment and annoyance. The defendant has taken an appeal.

There is no issue before us as to the judgment of the Trial Court in so far as the facts are concerned. There is no question that the home of plaintiffs suffered damages when the toilets in their home overflowed. On one occasion, there was water and sewage all over the house some two to three inches in depth. The only real issue set forth in the brief of defendant is as to the quantum awarded Mr. Barbay for mental anguish, etc. in the sum of $2,500.00, it being contended by defendant that Mrs. Barbay “bore the brunt of the sewage backup on all three occasions, particularly the second instance which apparently did the damages complained of, the other two instances being minor, doing little if no damage.”

The evidence reflects that the damages sustained by the plaintiffs was significant and the nature of these damages must have caused them a great deal of embarrassment. Because of financial conditions, plaintiffs were unable to replace some of the damaged property until more than a year and a half after the overflow occurred. There was an overwhelming stench associated with the backup which never left the home and, because of the location of the bathroom to the air conditioning unit, the smell was circulated and recirculated through the house. The plaintiffs had planned a dinner party which had to be cancelled because of one of the overflows.

LSA-C.C. art. 1934(3) in part provides: “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury * * * »

In Miller v. Thomas, 258 La. 285, 246 So.2d 16, 19 (1971), the Supreme Court of this state, after reviewing the jurisprudence said:

“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

We are unable to say, as a result of the overflows, that Mr. Barbay suffered any less than his wife from the indignities caused thereby. We certainly do not feel that the “much discretion” of the Trial Court has been abused, and its judgment will be affirmed.

For the reasons hereinabove assigned, the judgment of the Trial Court is affirmed, all costs of this appeal as permitted by law are to be borne by defendant.

AFFIRMED.


text:
    Frank G. SULLIVAN, Jr., et al. v. HARRIS MORTGAGE CORPORATION et al.
    No. 11116.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 25, 1977.

      Bobby L. Forrest, Forrest & Kiefer, Baton Rouge, for plaintiffs and appellants.
    Salvadore T. Mulé, New Orleans, for Harris Mortg. Corp., defendant and appellee.
    Victor Marcella and Donald T. Car-mouche, Talbot, Sotile & Carmouche, Don-aldsonville, for Harris Mortg. Corp., Atico Mortg. Investors, Dutel Title Agency, Inc., Harry E Cohen, defendants and appellees.
    Russell J. Schonekas, New Orleans, for Dutel Title Agency, Inc., defendant and ap-pellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiffs, Frank G. Sullivan, Jr., the construction contractor, and Edward E. Evans, the engineer, for the construction of Astro-land Subdivision in Ascension Parish sued respectively for the balance of the contract price and engineering fees due to them. They made ATICO Mortgage Investors (hereafter ATICO); Harris Mortgage Corporation (hereafter Harris); Dutel Title Agency, Inc. (hereafter Dutel); Harry E. Cohen as nominee of the Trustees of ATI-CO Mortgage Investors (hereafter Cohen); as well as the owner of the subdivision, Three M-C, Inc., defendants. Three M-C, Inc. went into bankruptcy, and the Trial Court rendered judgment in favor of the other defendants, dismissing the plaintiffs’ suit at their cost. Plaintiffs have appealed.

ATICO was the primary lender; Harris was a secondary lender to the extent of ten per cent through ATICO; Dutel disbursed funds for the lenders; and Cohen signed the mortgage in behalf of the lender.

Plaintiffs allege that they were induced to enter into the construction contract with the defendant, Three M-C, Inc., because of arrangements and agreements with Three M-C, Inc. entered into with the other defendants, as follows:

1. Three M-C, Inc. executed a collateral mortgage for $1,750,000.00 which was placed on record in Ascension Parish. This collateral mortgage was accepted by Cohen.

2. By act under private signature Three M-C, Inc. entered into a construction and/or development loan agreement with Cohen.

3. By a notice recorded in the Mortgage Records of Ascension Parish addressed to “whom it may concern”, it was acknowledged that a construction and/or development loan agreement was entered into between Three M-C, Inc. as owner, ATICO as lender, and Dutel as disbursement agent, which agreement involved a construction loan in the principal sum of $1,750,000.00.

4. By letter dated October 13,1971, Harris assured Sullivan that it had arranged the necessary financing for the subdivision and that the funds for the development cost would be disbursed by their disbursement agent, Dutel.

5. Plaintiffs’ petition further alleges that Sullivan entered into a contract with Threé M-C, Inc. dated October 25, 1971 to construct improvements in Astroland Subdivision. As a condition to awarding the contract, the plaintiff Sullivan was required to sign a performance bond and to name ATICO, in addition to Three M-C, Inc. as beneficiary. Attached to the contract was a statement signed by Harry E. Cohen as nominee of the trustees of ATICO Mortgagor Investors and Sullivan setting out that “they have approved a loan for the development contract herein and will disburse funds as provided in Page 3 herein based on the Consulting Engineer’s estimate.” Page 3 provides in part as follows:

“The Owner will make such partial payments as follows: ‘Ninety percent (90%) of the estimate, based on Contract prices, of labor and materials incorporated in the work up to the first day of the month, as estimated and approved by the Consulting Engineer or his authorized representative, less the aggregate of previous payments, will be paid on monthly estimates
FINAL PAYMENT: Upon satisfactory completion of the work the Owner will issue a written acceptance of the work to the Contractor who will immediately thereafter file same with the Recorder of Mortgages for the Parish of Ascension.’ ”

The Trial Judge in written reasons for judgment stated:

“We fail to find any agreement or understanding between the plaintiffs and the defendants that the lenders would disburse the entire cost of the project in the event that the owner became bankrupt, and since suretyship cannot be presumed, the suit of the plaintiffs will be dismissed at their costs.”

Plaintiffs-appellants contend that the Trial Judge erred in denying their claims by basing his reasoning on the principals of suretyship, and in not finding defendants primary obligors.

It is apparent, both in appellants’ brief and in oral argument that they have abandoned any contention that defendants are liable on the theory of suretyship. They argue, however, that the defendants are indebted to plaintiffs as primary obligors and rely on the case of Watson Brothers v. Jones, 125 La. 249, 51 So. 187 (1910), wherein the Supreme Court stated:

“There can be no objection to one’s contracting to pay for goods to be delivered, whether to the obligor, or to a third person, and the obligation resulting from such contract may be none the less a debt of the obligor because the third person, to whom the goods are delivered, also becomes bound for the price. If the condition of the contract is that the obligor is to pay for the goods only in the event that the person to whom they are to be delivered does not, then the latter is to be regarded as the principal debtor, and the contract is a collateral one, of suretyship, in which the obligor would be regarded as binding himself for the debt of another, and which could not be proved by parol evidence.”

In further support of their argument, plaintiffs-appellants cite to this court Jahncke Service, Inc. v. Fertel Corporation, 255 La. 503, 231 So.2d 560 (1970); Montelepre Memorial Hospital v. Kanbur, 170 So.2d 214 (La.App. 4th Cir. 1964); Hornsby v. Rives, 2 So.2d 532 (La.App. 2nd Cir. 1941); Carter v. Lofton, 17 La.App. 223, 135 So. 119 (2nd Cir. 1931); and Kleinpeter v. Connell, 10 La.App. 567, 121 So. 635 (1st Cir. 1929) as factually similar cases wherein the defendant was held to be a primary obligor.

Each case, however, must be decided on the facts as found in that case, and similar factual situations can only be used as an aid or guide to the court in determining whether the facts as presented justify the finding of a primary obligation.

As to the plaintiff, Edward E. Evans, the engineer, we find no facts in the record of this case from which this court could draw a conclusion that the defendants had obligated themselves as primary obli-gors to pay the fees of the engineer.

As to the plaintiff-appellant, Frank G. Sullivan, Jr., the letter dated October 13, 1971, from Harris to Sullivan merely verified that “necessary financing for the development” had been arranged, and it explained the disbursement procedure that Harris would use. As to that language which was attached to the construction contract between Three M-C, Inc. and Sullivan and provided that Harris had “approved a loan for the development contract herein and will disburse funds as provided in Page 3 herein based on the consulting engineer’s estimate,” we do not find same to be sufficient to hold the defendants as primary obligors. Taken as a whole, we are convinced that this addendum to the contract did nothing more than assure the contractor that a loan had been approved and money would be disbursed. To find the defendants to be primary obligors, there must be more definitive language used.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All cost of this appeal to be paid by plaintiffs-appellants.

AFFIRMED.