author: SCHOTT, Judge.

text:
    Succession of Irwin W. ROSENTHAL.
    No. 9745.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Harvey J. Lewis, New Orleans, for appellee J. William Rosenthal, M. D.
    Henry P. Dart, III, New Orleans, for appellant Mrs. Irwin W. Rosenthal.
    Richard A. Dowling, New Orleans, for appellee Austin Anderson.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Decedent, an attorney at law practicing in New Orleans, died on October 1, 1975, and is survived by his widow. He had no forced heirs and by virtue of a matrimonial agreement there was no community of ac-quets and gains between him and his wife.

This succession was opened on October 6, 1975, and shortly thereafter an olographic will dated June 18, 1964, and a codicil dated January 6, 1972, were admitted to probate. Mrs. Rosenthal was appointed executrix in the will, and the following provisions were made for the employment of an attorney:

“My executrix shall select the attorney to handle my succession. I fix the fee of said attorney as that fixed by the New Orleans Bar Association for administering successions. A declaration or affidavit of values may be filed in lieu of formal inventory, if possible so to do. The attorney’s fee shall include all legal matters in connection with my estate, and the preparation and filing of the United States Estate Tax Return, if needed . . . ”

Mrs. Rosenthal employed Austin Anderson as attorney for the succession, and on July 1, 1976, she filed a sworn descriptive list of the succession’s assets. This showed a total value of $1,247,708, consisting of real estate totaling $620,194, stocks and bonds $382,339.23, cash $215,000.57, jewelry $20,-215.90, and other property $9,958.39.

The executrix employed John L. Favolo-ra, certified public accountant, to handle the accounting and tax returns for the estate, and from the outset he assisted Anderson in the collection and evaluation of the assets leading up to the filing of the descriptive list. The estate tax return was due on July 1 and after Favolora prepared it the first disagreement among the parties emerged over the amount of attorney’s fee due Anderson which Favolora listed in the return as $62,385, based upon' 5% of the gross estate. This brought objections from the two principal legatees, Mrs. Rosenthal and Dr. Rosenthal. An agreement was apparently reached among the parties that Anderson’s fee would be $45,000 and the tax return would be amended at a later date to reflect that change. The return also showed a fee due Favolora in the amount of $12,477.

With the question of Anderson’s fee resolved to everyone’s apparent satisfaction, the administration of the succession continued routinely with Anderson as the attorney until January, 1977. During this period a number of leases were negotiated on the commercial properties owned jointly by the succession and Dr. Rosenthal and the usual advertising and homologations were obtained in this connection.

By January, 1977, relations between Mrs. Rosenthal and Dr. Rosenthal, and between Mrs. Rosenthal and Anderson, were becoming strained and the stage was set for the litigation which has culminated with the appeals presently before us. The root of the problem is in the wording of the codicil and was aggravated by a shortage of cash required for the payment of the succession debts. The pertinent provisions of the codicil are as follows:

“I give and bequeath to my wife, Henrietta Barcene Rosenthal, for her life, the income and the usufruct for her life, of all amounts, real, personal and mixed, of all assets that form my estate at my death.
“And in the above bequest, at no time shall she ever be called upon to furnish bond or to cause replacement of any existing structure that might be upon the real estate that forms part of my estate, unless covered by insurance.
“Should any undue repair be necessary the structures then existing shall be demolished unless the same can be repaired by money collected from insurance carried on said property.
“The total management of my estate shall rest in my wife; at no time and under no circümstances shall she be called upon to furnish bond in connection with the bequest of the usufruct I now. make unto her herein.
“At no time, and under no circumstances, shall my usufructuary, my surviving wife, alienate by mortgage or sales, my interest in the real estate that I own, hereinbefore described.
“Any and all state inheritance taxes, and United States Estate Tax shall be paid from the corpus of my estate.
“Subject to the bequests hereinabove made, I give and bequeath the balance, or remainder, of my entire estate, its naked ownership of the real estate and improvements thereon, unto my nephew, Dr. J. William Rosenthal, and subject also to the bequest to my wife, I bequeath to him the naked ownership of my stocks, bonds and other assets.”

The cash problem confronting the estate is readily demonstrated by the schedule prepared by Favolora showing that some $462,-910 had been collected in cash as of November 30, 1976. Mrs. Rosenthal’s tableau of distribution filed in the proceedings in April, 1977, and to be discussed in detail hereafter, showed expenditures by her as executrix in the amount of $426,217 and items payable for her executrix’s fee in the amount of $31,193, and for Henry P. Dart, III, attorney, in the sum of $22,500. The tableau did not include fees for Anderson and Favolora.

At a meeting held early in 1977 and attended by Mrs. Rosenthal, Anderson, Dr. Rosenthal, his attorney, and Favolora, an agreement was reached whereby sufficient cash would be made available by the sale of the succession’s jewelry and certain municipal bonds. Also discussed as a source of additional cash were two items totaling $20,000 which Mrs. Rosenthal claimed as her own and not the succession’s property. These included a check for $15,000 which Mrs. Rosenthal had withdrawn from decedent’s bank account shortly before his death and which she claimed as a manual gift, and the sum of $5,000 which she withdrew from decedent’s bank account shortly after his death pursuant to LSA-R.S. 9:1513. Favo-lora, as an accountant, was of the opinion that this $20,000 belonged to the succession, and this opinion was apparently shared by Anderson.

Although Mrs. Rosenthal employed Dart around this time to represent her personally, Anderson continued to represent the succession and took steps to close out the estate. He prepared a number of pleadings, including a tableau of distribution, a final account and a petition for possession and for the discharge of Mrs. Rosenthal as executrix. However, much to his surprise, on April 6,1977, Mrs. Rosenthal, through Dart, filed a petition and obtained an ex parte judgment of possession, recognizing her as the usufructuary of decedent’s estate and as absolute owner for her lifetime of all cash and “consumable items” belonging to decedent at the time of his death, and providing that the “nonconsumable items” forming part of this estate would remain under her administration.

On April 14, Dr. Rosenthal filed a rule to set aside this judgment of possession to which Mrs. Rosenthal responded with exceptions of improper use of summary proceedings and no cause of action. At this point, Anderson no longer represented the succession and Dart became attorney of record on April 26, 1977. The trial of this rule was referred to a commissioner of the Civil District Court, and on May 3 judgment was rendered overruling Mrs. Rosenthal’s exceptions and setting aside the judgment of possession. This is one of the judgments from which Mrs. Rosenthal has appealed.

On April 29, 1977, Mrs. Rosenthal filed a petition for homologation of “final tableau of distribution.” The tableau provided that she had already paid some $426,216 of debts owed by the succession and that she proposed to pay her executrix fee of $31,192 and $22,500 to Dart “for legal services as attorney for the succession.” In the tableau she recited that there were more than sufficient assets to pay the debts and consequently “there is no necessity to show total funds available or to rank creditors as set forth in Article 3303 of the Louisiana Code of Civil Procedure.”

An opposition to the tableau was filed by Dr. Rosenthal on the basis that it included Mrs. Rosenthal’s personal bills paid out of succession funds, because of the proposed payment to Dart and because he was entitled to reimbursement in connection with repairs of succession property and compensation for services in managing the property. Anderson opposed the tableau with respect to the proposed executrix’s fee and the fee for Dart, and because it failed to list him as a preferred creditor for an attorney’s fee of $62,735, or in the alternative $45,000. Finally, Favolora opposed the tableau because it did not list him as a creditor for $12,477. After the required publication, the oppositions were tried on June 3, 20 and 24, 1977, and were submitted to the court for a decision. On June 28 Dart moved for a continuance, seeking to produce additional testimony by Mrs. Rosenthal who had already testified in the proceedings, but on July 15 this motion for a continuance was denied, and from this judgment Mrs. Rosen-thal has also appealed.

On August 22 the trial court rejected and disapproved the tableau of distribution except to approve payment of an attorney’s fee to Dart for $11,000 and the executrix’s fee for $31,192.70. He maintained the opposition of Dr. Rosenthal to the extent of allowing him $8,973 for repairs of the property and $5,000 for managing it. He maintained Anderson’s opposition to the extent of allowing him $45,000, and Favolora’s to the full extent of awarding him the $12,477 fee. He further ordered the executrix to seek court authority to sell succession assets to the extent that this might be necessary to satisfy payments of the debts to Dr. Rosenthal, Anderson and Favolora. From this judgment, Mrs. Rosenthal has appealed.

In the meantime Mrs. Rosenthal had on June 24 filed a supplemental tableau in which she sought to obtain control over all liquid assets as the usufructuary. On October 6 she filed a rule against Dr. Rosenthal seeking the same relief and also seeking a declaration that Dr. Rosenthal forfeited his legacy. This relief was based on the following provisions in the decedent’s will:

“Any person, directly or indirectly, who shall attack this will, or any of its provisions, shall lose any benefits to be derived hereunder.”

On December 19 the trial judge rendered several judgments. He denied Mrs. Rosen-thal’s motion to take possession as usufruc-tuary as well as her motion to have Dr. Rosenthal forfeit his legacy. He denied her motion for a new trial from the judgment of August 22 in which he rejected her tableau of distribution. He denied homologation of her supplemental tableau distribution, and finally he dismissed a rule that Mrs. Rosenthal had filed on October 13 in which she attempted to traverse her original descriptive list of assets by claiming for herself personally in opposition to the succession, 1) $20,000 cash; 2) a dividend in the amount of $1412.80 which had been declared prior to the decedent’s death but was paid after the date of his death; and 3) certain pieces of jewelry said to be manual gifts from decedent. From these judgments she has also appealed.

The first issue before us is the validity of the judgment of May 3 in which the partial judgment of possession in favor of Mrs. Rosenthal was set aside.

Mrs. Rosenthal raises procedural objections to this judgment, claiming that there was improper use of summary proceedings to attack the judgment of possession and that the matter, once referred to the Commissioner of the Civil District Court was not properly handled in accordance with R.S. 13-1171. She bases her first objection on C.C.P. Art. 2971’s provision that the rules applicable in ordinary proceedings apply to succession proceedings, except as otherwise provided by law, and she argues that no provision of the law authorizes summary proceedings to set aside a judgment of possession. She likens her position to that of any litigant who has taken a final judgment and the established jurisprudence to the effect that an action of nullity brought under C.C.P. Arts. 2001 et seq. must be commenced by ordinary proceeding.

It was Mrs. Rosenthal’s duty as testamentary executrix to comply with the law regarding the administration of the succession. As a fiduciary under C.C.P. Art. 3191 she also owed a duty to Dr. Ro-senthal as a presumptive legatee of this succession, as well as creditors such as Anderson and Favolora. When she filed this petition for partial possession, no tableau of distribution had been homologated so that Art. 3372 was applicable. It provides:

“At any time prior to the homologation of the final tableau of distribution, the legatees in a testate succession may be sent into possession of all or part of their respective legacies upon filing a petition for possession as provided in Articles 3031 through 3035, except that the proceeding shall be contradictory with the executor. Upon the filing of -such a petition, the court shall order the executor to show cause why the legatees should not be sent into possession. If the legatees are sent into possession of a part of their respective legacies, the executor shall continue to administer the remainder.”

This article provides the mechanism for a legatee to get possession of his legacy but by requiring a contradictory hearing it enables the executor to inform the court of any circumstances which make immediate possession inappropriate.

Mrs. Rosenthal argues that a contradictory hearing was unnecessary and the ex parte petition was proper because she was at once the legatee and the executrix. This argument ignores the fact that she had a conflict of interest and her ex parte petition was in utter disregard of her duty to Dr. Rosenthal, as well as Anderson and Favolo-ra.

At this juncture it is appropriate to elaborate on Mrs. Rosenthal’s conflict of interests so as to emphasize the impropriety of the action she took. Decedent bequeathed to her the usufruct of his property and Dr. Rosenthal the naked ownership. He also bequeathed to her the income from all of his property for the duration of her life.

In her petition for possession Mrs. Rosen-thal alleged:

“Petitioner is competent and desires to be recognized as usufructuary of his succession without bond, and as such sent into possession as absolute owner of all income, dividends, interest, rents accruing from or forming part of the estate of Irwin W. Rosenthal from and after the date of his death on October 1, 1975 for the lifetime of petitioner, together with all cash and items equivalent to cash and consumable items which formed part of his estate on the day of death, and more particularly, but without limitation, the following described items:” (Emphasis ours)

The ex parte judgment of possession decreed that Mrs. Rosenthal is the “absolute owner” of “all cash and items equivalent to cash and consumable items” belonging to decedent at the time of his death.

The usufructuary is not entitled to absolute ownership. Although she enjoys an imperfect usufruct over cash which permits her to spend it, C.C. Art. 536, that right is subject to “the obligation of returning the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct.” C.C. Art. 549. These articles of the Civil Code which were in effect at the time of decedent’s death were essentially unchanged by Act 103 of 1977 and have been combined into the present Art. 538. While there may be an inherent practical conflict in the application of this law it is quite clear that the usufruct is not the same as absolute ownership. Comment (c) to present Art. 538 in discussing prior Art. 549 states:

“While the corresponding article in the French Civil Code has given rise to divergent interpretations, Louisiana courts have consistently charged the usufructu-ary with the obligation to restore the value that the things had at the commencement of the usufruct. See Succession of Trouilly, 52 La.Ann. 276, 26 So. 851 (1899); Succession of Blancand, 48 La.Ann. 578, 19 So. 683 (1896); Succession of Hayes, 33 La.Ann. 1143 (1881); cf. In re Tutorship of Jones, 41 La.Ann. 620, [6 So. 180] (1889).”

Stewart v. Usry, C.A. 5, 1968, 399 F.2d 50, involves the liability of the usufructuary for federal estate taxes, but in an excellent discussion of Arts. 536 and 549 Judge Ains-worth makes the following comments:

“Thus the ‘ownership’ referred to in LSA-C.C. Art. 536 is not in the nature of an unqualified ownership which would exclude the rights which other persons may possess or enjoy on the termination of the usufruct. Although, as a practical matter, a surviving spouse may completely deplete, by use, disposition, or otherwise, the property which she is allowed to use and enjoy, the reverse inference is true also — she may not so deplete the property.”

This underscores the apparent contradiction between the articles but a reading of the cases and treatises cited in the opinion makes it readily apparent that Mrs. Rosen-thal was and is not entitled to the “absolute ownership” of the cash owned by her husband at his death.

In his will decedent specifically provided that state inheritance taxes and federal estate tax were to be paid out of the corpus of his estate. These amounted to $65,655.16 and $310,822.35 respectively. He provided for perpetual care of his family’s burial plots and for two legacies of $1,000 each. He prescribed that Mrs. Rosenthal would be paid for services as executrix and for her to employ an attorney at a specified fee. He also provided that property which was not revenue producing was to be sold.

Considering these provisions and the general duties of the executrix to collect his assets, pay his debts, and pay the usual debts of his succession, such as the funeral bill, it was incumbent on Mrs. Rosenthal to segregate the cash belonging to decedent at the time of his death, sell property producing no revenue and add the proceeds to the cash on hand, use this to pay the taxes and debts of decedent and the succession and to sell other assets as would be sufficient to generate the balance of cash needed for that purpose. Of course it was her duty to comply with Title III of Book VI of the Code of Civil Procedure as she took these steps, including those provisions found in Chapter 6, regarding the sale of succession property, Chapter 7 on the payment of debts and charges of the succession, and Chapter 9 on the accounting required of the executrix.

Any income produced on the property of the succession would eventually be Mrs. Ro-senthal’s under the terms of decedent’s will and codicil. But she may not be sent into possession of those funds until she is properly sent into possession by judgment of the trial court. She may not be sent into possession until and unless she complies with the law governing her administration. Chapter 8 of Title III makes it possible for her to obtain interim allowances during her administration.

Mrs. Rosenthal’s petition and ex parte judgment of possession flew in the face of all of the foregoing.

We have concluded that the use of summary proceedings was authorized by C.C.P. Art. 2592, which provides that summary proceedings are available for the disposition of “an incidental question arising in the course of litigation,” because the ex parte judgment of possession was obtained by Mrs. Rosenthal without any. legal basis whatsoever and her action was altogether disruptive of the orderly administration of the succession in direct conflict with her duty as executrix.

As to Mrs. Rosenthal’s complaint about the commissioner and his failure to file a report, thjs objection is irrelevant under the circumstances. The judgment of the trial court, not the recommendation of the Commissioner, is at issue here, and since that judgment was based on the law the Commissioner’s role in the matter appears to be superfluous. The Commissioner functions as a trier of factual issues and the provisions of R.S. 13:1171 apply to typical situations where the Commissioner has recommended a judgment based on evidence which he has taken. What was before the Commissioner in the instant case was a question of law and that question was ultimately decided by the court with the Commissioner’s report adding nothing.

We have concluded that the judgment setting aside the ex parte partial judgment of possession was eminently correct and will be affirmed.

The next judgment to be considered is that which denied Mrs. Rosenthal a continuance and an opportunity to put on additional evidence after her tableau of distribution and oppositions thereto had been tried for three days. In effect, Mrs. Rosen-thal contends that the trial judge abused the discretion afforded him under C.C.P. Art. 1601 because she was prevented from putting on rebuttal testimony after the third day of trial. The record shows that she did testify at the beginning of the trial and that she rested her case and submitted the matter on briefs to be filed thereafter along with the other parties to the case. Nothing in her brief suggests any real reason for concluding that the trial judge abused his discretion. On the contrary, she was given ample opportunity to be heard and the trial court correctly proceeded to judgment without unnecessary and undue further delay on the part of the litigants. We see no merit to this contention and the judgment denying the continuance will be affirmed.

We turn next to the judgment of August 22 which rejected plaintiff’s tableau of distribution almost in its entirety and allowed only two debts to be paid by her along with the maintenance of the oppositions as aforesaid.

The tableau of distribution is provided for in Art. 3303 as follows:

“When a succession representative desires to pay charges or debts of the succession, he shall file a petition for authority and shall include in or annex to the petition a tableau of distribution listing those charges and debts to be paid.
“If the funds in his hands are insufficient to pay all the charges and debts in full, the tableau of distribution shall show the total funds available and shall list the proposed payments according to the rank of the privileges and mortgages of the creditors.”

At the outset of this discussion, it must be noted that this article could not be followed literally because most of the debts listed on the tableau had already been paid when the tableau was filed. The scheme of the Code of Civil Procedure with respect to the payment of debts and charges of successions set forth in Art. 3301, et seq. begins with a requirement that a succession representative may pay debts only with the authorization of the court, with only two exceptions admitted; namely, for the situation where there is a going business provided for in Art. 3224 and as provided for in Art. 3302. The latter article does not dispense the succession representative from the necessity of obtaining a court order but simply eliminates the requirement of publication of the debts under certain circumstances. Comment (b) to this article indicates that the court has broad discretion in authorizing the payment of debts without publication and obviously the judge in the exercise of that discretion may consider the solvency and • liquidity of the succession along with the nature of the debts sought to be paid. For instance, on the tableau of distribution filed by the executrix herein are the funeral bill and many expenses of decedent’s last illness. Without a doubt she could have gotten court authority for the payment of these debts without publication under Art. 3302, but instead she chose to pay the bills and then sought to have court ratification by tardily filing a tableau of distribution.

If we were to adhere strictly to the Code provisions at this point no tableau could ever be homologated, no final account could ever be homologated under Art. 3332 and the succession proceedings would come to an impasse. Thus, although the Code does not provide for the situation where the executrix has paid debts without court authority it becomes necessary to implement the provisions concerning the tableau of distribution retroactively and thereby restore some semblance of order to the proceedings.

The. tableau of distribution was duly advertised and creditors of the succession were thereby notified. The only oppositions came from Dr. Rosenthal, Anderson and Favolora. At the trial of the opposition each individual item was discussed by the executrix and many of the items were approved expressly by Dr. Rosenthal. The other two opponents did not object specifically to the items on the tableau but only because their claims were not listed. Had the executrix simply filed pursuant to Art. 3302 a petition for authority to pay many of the debts, such as the state and federal taxes, the funeral bill and the special legacies which are on her tableau, the court undoubtedly would have authorized the payment. Since no one opposed the account other than the three opponents mentioned, in view of the fact that the tableau was published in accordance with law, since no objection was made to some of the disbursements, and since the succession is amply solvent, there is no reason why the tableau should not have been homologated in part as to those items which Dr. Rosenthal approved.

This applies to all of the items on the first page except the sixth item which was paid to Leon Irwin & Co., Inc.; all of the items on the second page except the first, to Braniff Place for $1030.13, and the third; to Coco Gulf Service for $227; all of the items on the third page except for the first, to Braniff Place, the eighth, to, Louisiana Companies, the ninth, to Willow Wood, the tenth to National Jewish Hospital Research Center, the eleventh, to Congregation Tern-pie Sinai, the fourteenth, to Mrs. Rosenthal for $1233.53, and the_ fifteenth to Quality Flower Shop. On page four the account should be homologated only with respect to the second item to OK Storage & Transfer, the sixth, to Latter & Blum, the thirteenth, to Acme Marble & Granite Co., and the twenty-second and twenty-third items to Temple Sinai and Congregation Chevra Thi-lim for $1,000 each. On the fifth page the tableau should be homologated only to the extent of the first and second items to the Collector of Revenue and Internal Revenue Service for $119 and $2568 respectively, the fourth item to the Sewerage and Water Board, the tenth to Hebrew Rest Cemetery Association, the twelfth, to Whitney National Bank, the thirteenth to the Sewerage and Water Board, the eighteenth, to the Sewerage and Water Board, and the twenty-first item to the Collector of Revenue for the State of Louisiana. On the sixth page the tableau should be homologated only to the extent of the first item to the Internal Revenue Service, and the eighth, to Security Van Lines. On the seventh page the tableau should be homologated only to the extent of. the third item to the Whitney National Bank, and the sixth, to John Favo-lora for $49.31.

In all other respects the judgment disapproving the tableau of distribution will be affirmed. The court correctly disapproved a number of items which were expenses for rental properties owned jointly between the succession and Dr. Rosenthal and which the executrix agreed to remove from the tableau pending a separate settlement of these items between her and Dr. Rosenthal. The court correctly disallowed rent Mrs. Rosenthal paid for her apartment in Braniff Place from October, 1975, to June, 1976, flowers she purchased from the Quality Flower Shop to put on the graves of her husband’s relatives, various donations she made to charitable institutions after the death of her husband, telephone bills for her own personal telephone in her apartment after the death of her husband, her own federal and state income taxes for the year 1976, an item to Louisiana Companies for insurance on her own property and a claim for reimbursement in the amount of $1233.53.

With respect to the last item, although it may be that these were expenses she incurred in connection with her husband's last illness, they are not properly documented at this time and were properly disallowed. Her right to reassert this claim is reserved to her.

Additionally, the succession owned a 1965 automobile which the executrix finally got authority to sell for $175 in October, 1977. Among the items on the tableau is one to repair the automobile for $227 and others for fourteen months of rent for the storage of that automobile at $31.80 per month. Because these expenditures seem inconsistent with the requirements of sound administration they were properly disallowed. Finally, the items totaling $82 for rent on decedent’s law office long after he died was not adequately explained by the executrix and was properly disallowed.

Turning next to the other items which were allowed by the trial court, these include sums of $8,973.79 and $5,000 to Dr. Rosenthal, $45,000 to Austin Anderson, and $12,477 to Favolora. The allowance of a payment to Dart by the executrix is the subject of an answer to the appeal by Dr. Rosenthal. Each of these items will be discussed, beginning with the amount awarded to Favolora.

As to this item there is no real contest as to the amount of Favolora’s bill or the fact that the bill is due and owing. The problem raised by the executrix is with respect to who must ultimately pay this amount. She contends the last will and testament of the decedent provided that the attorney would be paid out of his estate a fee as prescribed by the fee schedule of the New Orleans Bar Association, and that this fee would include preparation of the federal tax return..

Favolora does not break down his fee to show what portion was allocated to the preparation of the return and the balance for general accounting services which he has rendered to the succession. Unquestionably he is entitled to be paid in full out of the succession, and to that extent the judgment appealed from will be affirmed. This, however, does not solve the problem as far as the liability of the succession is concerned for attorney’s fees. The ultimate issue in connection with attorney’s fees (to be discussed hereinafter) is whether that portion of Favolora’s fee for the preparation of that estate tax return will be deducted.

With respect to the amounts awarded to Dr. Rosenthal on his opposition, the evidence shows that he is entitled to the sum of $8,973.79 for repairs made to the property. While the succession was pending one of the buildings was damaged by a fire and, with Mrs. Rosenthal’s consent, Dr. Rosen-thal handled the fire loss completely to the extent of hiring a contractor to repair the property and collecting the insurance proceeds. Mrs. Rosenthal has taken the position that she would not have expended anything on repairs in excess of the fire insurance proceeds but she makes no proof that the building was insured 100%, that the coverage was adequate or that the repairs made by Dr. Rosenthal were unnecessary. On the other hand, Dr. Rosenthal testified that the repairs were necessary and since the building was put back into condition where it was revenue producing as the result of these repairs we see no error on the part of the trial judge in allowing this item to Dr. Rosenthal.

On the other hand, the award of $5,000 to Dr. Rosenthal for services rendered appears to be erroneous as a matter of law. He was a co-owner of the property with the succession, and in the absence of an agreement between co-owners one cannot collect a fee for managing the property from the other. Beavers v. Stephens, 241 So.2d 1278 (La.App. 3rd Cir. 1977), Conrad v. Burbank, 25 La.Ann. 112 (La.1873). There is no evidence of a contract between Mrs. Rosenthal and Dr. Rosenthal, and even if there had been Mrs. Rosenthal was not at liberty to obligate the succession without court approval. Mrs. Rosenthal may have incurred some individual liability to Dr. Ro-senthal, but that issue is not before us. We have resolved that the judgment insofar as it awards Dr. Rosenthal $5,000 for managing the property will be reversed.

We turn next to the problem of the attorney’s fee.

There is no question from the record but that Anderson performed valuable services for the succession and ultimately was prepared to complete his work, except for the fact that Mrs. Rosenthal became disenchanted with him in the beginning of 1977. Because she would not cooperate with him he was unable to complete his work.

The language of the will limited the succession’s liability for attorney’s fees to $28,704.16 based on the Bar Association Fee schedule. However, Mrs. Rosenthal and Dr. Rosenthal agreed that the succession would pay Anderson a fee of $45,000 when they met with Favolora to resolve the matter prior to the filing of the tax returns. Since this agreement did not operate to the detriment of any creditors and since the Rosenthals were the only parties affected by the agreement the amount of the fee was properly approved by the court.

For the same reasons we need not address the problem presented by the will that Favolora’s fee for the preparation of the tax returns was to be deducted from the attorney’s fee. Since both Mrs. Rosenthal and Dr. Rosenthal agreed that the succession would pay Favolora’s fee over and above Anderson’s $45,000 the problem was solved.

Anderson’s employment was subject to termination at Mrs. Rosenthal’s will but he was entitled to compensation for the services he rendered. Fiasconaro & Fiasconaro v. Orlando, 342 So.2d 1261 (La.App. 4th Cir. 1977). We have resolved that Anderson performed 90% of the services he had undertaken, and consequently is entitled to recover from the succession the sum of $40,500. The judgment will be amended accordingly.

The problem of Dart’s fee is not solved by the foregoing. The award to him against the succession for $11,000 for legal services rendered to the succession as of August 22, 1977, is not supported by the facts or the law. Most of his efforts were in behalf of Mrs. Rosenthal personally. When he first became involved Anderson was still representing the succession and was given the impression that Dart had been employed by Mrs. Rosenthal to represent her personally with no intention to discharge Anderson as attorney for Mrs. Rosenthal as executrix. Even when Mrs. Rosenthal filed her petition for possession on April 6, 1977, in her fiduciary and personal capacities with Dart as her attorney, Anderson was still the attorney of record for the succession and had not been discharged. He was not formally discharged until April 26 when, on Mrs. Rosenthal’s motion, he was removed as counsel of record.

We have already resolved that Anderson was entitled to $40,500 only because he was the beneficiary of a specific contract made by both Mrs. Rosenthal and Dr. Rosenthal. Dart was not the beneficiary of such an agreement, and without it the fee of the attorney for the succession was limited to $28,704. Since this was already committed to Anderson Mrs. Rosenthal could not employ Dart at the succession’s expense without agreement from Dr. Rosenthal or authorization from the court. We view the trial court’s award to Dart as a retroactive approval of this succession obligation, the propriety of which is now at issue by virtue of Dr. Rosenthal’s answer to Mrs. Rosen-thal’s appeal.

Dart’s services to the succession as of August 22,1977, were rendered primarily to the benefit of Mrs. Rosenthal as an individual and not as the succession representative. The petition for and judgment of possession were improper from the standpoint of the succession. The tableau of distribution drew opposition not because of the legitimate succession debts it included but because of the many personal claims of Mrs. Rosenthal it contained. The litigation Dart was handling was the result of Mrs. Rosenthal’s personal claims in opposition to the succession. Thus, there is no support for an award of $11,000 to Dart against the succession for services rendered as of August 22,1977, and the award to Dart will be reduced to $4500, and contemplates his completion of the succession. Of course his right to claim additional compensation from Mrs. Rosenthal personally is recognized.

The remaining judgments before us are those denying Mrs. Rosenthal’s rule to traverse the descriptive list of assets, denying her motion to have Dr. Rosenthal’s legacy forfeited, dismissing Mrs. Rosenthal’s application to homologate a supplemental tableau of distribution and denying a motion she filed to get immediate possession of her usufruct.

With respect to the first of these the rule to traverse was properly dismissed. One of the first duties of the executor is to have an inventory taken of the succession property pursuant to C.C.P. Art. 3131 et seq. or to furnish a descriptive list pursuant to Art. 3136 in lieu of an inventory. In this case, Mrs. Rosenthal as executrix chose to file a descriptive list and was joined in the affidavit of its correctness by Dr. Rosenthal. Art. 3137 provides that the descriptive list is prima facie proof of all matters shown therein. Thus, she is in the anomalous position of attempting to traverse her own descriptive list which she herself swore to as accurate fifteen months previously. In any event the trial judge was apparently unimpressed with Mrs. Ro-senthal’s testimony that she was the recipient by manual gifts of certain jewelry and the sum of $15,000 shortly before decedent’s death. We are not in a position to reverse his credibility call. As to the $5,000 which Mrs. Rosenthal withdrew pursuant to R.S. 9:1513, this was properly included in the assets of the succession. The statute simply authorizes a bank to pay up to $5,000 to a surviving spouse without court proceedings out of funds which are on deposit in the name of the decedent. That is not to say that the funds do not form a part of decedent’s succession. Finally, in her rule to traverse Mrs. Rosenthal claims as her own some $1412.80 in dividends which were declared before decedent died but were paid post mortem. We are persuaded that this is not income to which Mrs. Rosenthal will be entitled in full ownership but is part of the succession on which she is to receive only the usufruct. Favolora treated them as assets of the succession for tax purposes. In Leury v. Mayer, 122 La. 486, 47 So. 839 (1908), dividends declared while the usu-fructuary lived but paid after his death were held to belong to the usufructuary. Present C.C. Art. 552, while not controlling, was an attempted Codification of the jurisprudence and it provides that a dividend declared during the existence of the usu-fruct belongs to the usufructuary. By analogy the dividend declared prior to the existence of the usufruct belongs, to the succession. The judgment on the rule to traverse will be affirmed.

As to the forfeiture of Dr. Rosen-thal’s legacy, the will provides that anyone who attacks the will will lose benefits derived thereunder. We do not find that Dr. Rosenthal has attacked the will but rather he has taken appropriate action to have the will properly administered. He was entitled to call on her to perform her duties properly and his action in the premises is not an attack on the will as contemplated by the testator. The judgment on this point will be affirmed.

Finally, Mrs. Rosenthal has appealed from judgments which dismissed her application to homologate a supplemental tableau of distribution and denied her motion to get immediate possession of the usufruct. The trial judge properly rejected the supplemental tableau because it did not purport to pay debts and charges but rather was an indirect attempt by Mrs. Rosenthal to be sent into possession of her legacy, the same result she sought in her motion to get possession of the usufruct. She has unduly complicated this succession by failing to comply with the law. After discharging her duties as executrix, including a proper accounting for all funds, she may be sent into possession as usufructuary and income beneficiary.

DECREE

The judgment of May 3, 1977, in favor of Dr. J. William Rosenthal and against Mrs. Henrietta B. Rosenthal, Executrix of this Succession vacating, annulling and setting aside the partial judgment of possession dated April 6, 1977, is affirmed;

The judgment of July 15, 1977, denying the motion for continuance filed by Mrs. Henrietta B. Rosenthal is affirmed;

The judgment of August 22, 1977, on the application of the executrix to homologate her tableau of distribution and the oppositions filed by Dr. J. William Rosenthal, Austin Anderson and John L. Favolora is affirmed in part, amended in part and reversed in part. That judgment as rendered by the trial court is vacated and recast as follows:

The tableau of distribution filed by the executrix on April 29, 1977, is homologated as to the specific items on pages one through seven described in detail in the body of this opinion and is rejected and disapproved otherwise;

The opposition of Dr. J. William Rosen-thal is maintained to the extent that his claim for the sum of $8,973.79, with legal interest from August 22, 1977, until paid, is recognized and is denied with respect to his claim for $5,000;

The opposition of Austin Anderson is maintained to the extent of recognizing his claim for attorney’s fees in the amount of $40,500 as a privileged claim with legal interest from August 22, 1977, until paid;

The opposition of John L. Favolora is maintained to the full extent of recognizing his claim for $12,477 with legal interest from August 22, 1977, until paid;

The application of the executrix to pay attorney’s fees to Henry P. Dart, III, is granted but only to the extent of $4,500 and all oppositions thereto are denied; said fee to cover completion of the succession;

In all other respects and to the extent that the judgment of the trial court dated August 22, 1977, is not in conflict with the foregoing, that judgment is affirmed;

The judgment of December 19, 1977, dismissing the rule of the executrix to traverse the descriptive list of assets is affirmed;

The judgment of December 19, 1977, dismissing the rule of the executrix to show cause why she was not then entitled to the usufruct and why Dr. J. William Rosenthal should not forfeit his legacy is affirmed;

The judgment of December 19, 1977, dismissing the application of the executrix to homologate her supplemental tableau of distribution is affirmed;

The succession is cast for all costs of these proceedings and this appeal.

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

      . The real estate was decedent’s undivided 75.17% interest with the remaining interest owned by his nephew, Dr. J. William Rosen-thal.

      . There is no suggestion by Mrs. Rosenthal that the use of summary proceedings hindered her in the accumulation or presentation of her evidence. Her objection was purely technical.


source: Caselaw Access Project

author: BAILES, Judge.

license: Public Domain

text:
    Phillip DUCOTE, Appellant, v. LOUISIANA DEPT. OF HEALTH AND HUMLAN RESOURCES, Charity Hospital of Louisiana at New Orleans.

    No. 12601.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.
    James A. McPherson, McPherson, Weber & Zainey, New Orleans, for appellant.
    H. M. Westholz, Jr., LHHRA, New Orleans, for appellee.
    Before ELLIS, LOTTINGER and BAILES, JJ.

        Editor’s Note: The opinion of the Court of Appeal of Louisiana in Jones v. International Insurance Company, published in the advance sheets at this citation (369 So.2d 179) was withdrawn from this volume and will be republished.

   BAILES, Judge.

The sole issue herein is whether the appellant’s appeal to the State Civil Service Commission of termination from his employment by the appointing authority, the Charity Hospital of Louisiana at New Orleans, should be dismissed.

The Commission ruled that the appeal by the employee, Phillip Ducote, had not been timely noticed, granted the motion to dismiss, and accordingly, dismissed the appeal.

Pretermitting the efficacy of the appointing authority’s notice of dismissal or termination of the appellant, Phillip Ducote, from the notice of dismissal in the record before us, we cannot determine whether the notice of dismissal was manually delivered or mailed to the appellant, if indeed either was done.

The notice of dismissal to which reference is made above appears to be a form of the Louisiana Department of Employment Security, titled, Separation Notice Alleging Disqualification, and is designated as Form LDES 77. On this form appears the following certification over the signature of the personnel officer of the appointing authority:

“I certify that the worker whose name and number appear above has been separated from work and that the above information is true and correct. I further certify that the individual named above has been handed or mailed a copy of this notice.”

Chapter 12, Disciplinary Actions, Separations, and Layoff, of the Rules of the Civil Service Commission prescribes the following action on the part of the appointing authority, and specifically Rule 12.3 Procedure in Adverse Actions for Cause, Except Suspensions, provides:

(a) In every case of removal, demotion, or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing givr ing detailed reasons for such action.
* sfc * if sfc *
(b) A written statement to which reference is made in the preceding paragraph shall be deemed furnished to the employee
1. Upon actual receipt by, or manual delivery to, the employee or to any resident of suitable age and discretion of the employee’s domicile, or
2. On the seventh day subsequent to the day on which an appointing authority establishes that it was deposited in the United States Mail, with proper postage affixed, and addressed to the employee at his last known address as furnished to the appointing authority at the time of employment, or as changed by the employee in writing.

From the provisions of Rule 12.3(b) 1. it is clear that the written statement giving detailed reasons for the dismissal may be manually delivered or hand delivered to the employee or to any resident of suitable age and discretion of the employee’s domicile. No proof was offered by the appointing authority that the written statement (notice of dismissal) was manually delivered to either the employee or to any resident of the employee’s domicile. Rule 12.3(b) 2. provides for an alternative mode of delivery of the written statement. This alternative is by depositing the written statement (notice of dismissal) in the United States Mail, with proper postage affixed and addressed to the employee at his last known address as furnished to the appointing authority at the time of employment, or as changed by the employee in writing. Under this mode, the written statement shall be deemed furnished to the employee on the seventh day subsequent to the date the appointing authority established that it was mailed as above provided. No proof was offered by the appointing authority that it had complied with Rule 12.3(b) 2.

Rule 13.12 Delay for Making Appeal, provides, inter alia, that no appeal shall be effective unless written notice of the appeal is received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or is addressed to the Director and is dated by the United States Post Office within thirty (30) days after the date on which appellant received written notice of the action on which the appeal is based. This written notice receipt of which commences the tolling of the 30-day appeal period is the written notice mandated by Rule 12.3 quoted above.

Inasmuch as the record contains no proof of compliance by the appointing authority with the requirements of Rule 12.3 we find no basis for commencing the tolling of the thirty (30) day period for the appeal as provided in Rule 13.12.

Accordingly, the judgment of the Civil Service Commission dismissing this appeal is reversed.

REVERSED.


author: MARVIN, Judge.

text:
    Kenneth R. MORRIS, Plaintiff-Appellee, v. Betty Jean Bowden MORRIS, Defendant-Appellant.
    No. 13806.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellant.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In this partition by licitation of property which once comprised the community estate of the litigants, the lower court allowed some of the claims of each ex-spouse against the community and against the separate estate of the other. The defendant ex-wife appeals and the plaintiff answers the appeal, each alleging errors in the lower court’s allowance or disallowance of one or more of the several claims of each litigant. We amend and affirm.

The movables of the community were amicably partitioned in kind. The partition sale of the remainder of the property produced a net community fund of almost $28,-200.

The defendant ex-wife inherited certain funds from her father during the marriage, constituting her separate property, from which she claims she paid a total of $5,000 in making a down payment on a home. The lower court recognized only $2,000 of this claim as having been proved.

The plaintiff’s separate claims arose after the parties ceased living together and before the partition sale. The lower court allowed the husband’s claims totaling $7,577.35.

Judgment of separation, which was signed in January 1977, dissolved the community effective the date the petition for separation was filed, July 8, 1976. CC 155. This judgment ordered the husband to pay $700 per month pendente lite alimony. The judgment also required the husband to pay an additional $100 per month to the wife and required the wife to make the monthly mortgage payments on the former family home, which were then $415.76, until such time as the home might be sold. See Morris v. Morris, 350 So.2d 971 (La.App.2d Cir. 1977).

From August 1976 through December 1976 plaintiff paid the mortgage payments with his separate property (5 months X $415.76, or $2,078.80). In 1977 the defendant made the mortgage payments (12 months X $415.76, or $4,989.12) as the judgment provided.

The ex-wife did not comply with the judgment and did not pay the last three mortgage payments before the partition sale (January-March, 1978) which by then had been increased to $456.63. The total of these payments (3 months X $456.63, or $1,369.89) was paid as a part of the balance that was owed on the mortgage, out of the gross partition sale proceeds.

The lower court allowed these claims to plaintiff against the community:

1976 mortgage payments $2,078.80
Payment of court costs 1,092.00
Payment of certain community debts 4,406.57
$7,577.37

Plaintiff received some community funds after the suit was filed, one-half of which ($662.71) was ordered paid to defendant.

Defendant likewise received some community funds after the suit was filed and one-half of these funds ($346.34) was ordered paid to plaintiff. Defendant was ordered to pay plaintiff from her separate funds, $500 which she charged to him on his credit card after suit was filed. She was also required to pay the plaintiff from her separate funds, the 1978 mortgage payments totaling $1,369.89 which she should have paid as the judgment directed. Defendant took her inheritance of almost $10,-000 and divided it, depositing in a Dallas bank an almost equal amount in a checking account in her name and in a savings account in the name of “Mrs. . . or Mr. . ” Shortly afterward she wrote a $2,000 check to the builder or seller for a down payment on a home the parties purchased in Dallas. Two months later she wrote a $3,000 check to cash and wrote on the check “Saving for House.” Defendant placed the $3,000 into a savings account to satisfy a requirement of the lending institution that financed the purchase of the Texas home in 1967. It was not shown that plaintiff expended any of defendant's inherited funds or that defendant expended any sum other than the $2,000 for or on behalf of the community. The Texas home was sold and the proceeds from its sale were applied to satisfy debts incurred in the purchase of the family home of the parties in Monroe. The record supports the lower court’s judgment in this respect. CC Arts. 2390, 2391. Emerson v. Emerson, 322 So.2d 347 (La.App. 2d Cir. 1975).

The husband contends that the lower court erred in not allowing him credit against the community for the mortgage payments which he contends were made through the alimony payments to his wife (12 mortgage payments of $415.76 she made in 1977). He makes no claim that the alimony should be charged to the community.

In Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir. 1977) the ex-husband claimed a credit against the community proceeds in a partition suit for the alimony pendente lite he had paid his ex-wife before divorce and for the payments he had paid to satisfy the mortgage debt secured by the family home. The court said that the ex-husband should receive no credit against the community for the amounts paid as alimony, but allowed him a credit for the amounts he paid on the mortgage.

In McElwee v. McElwee, 255 So.2d 883 (La.App. 2d Cir. 1971), writs denied, we held that where the wife has possession of community funds in excess of the accrued alimony pendente lite, the alimony owed the wife at the time of partition of the community property is chargeable to the community property and not to the separate estate of the husband.

It should be observed here that there were no substantial revenues such as rents, accruing to the fictitious community after the effective date of dissolution and that the community funds at the disposition of each party at and after this time were relatively of insignificant or inconsequential amount.

We find no error with respect to the lower court’s charging the community with the mortgage payments made by the plaintiff ex-husband in 1976 ($2,078.80).

The judgment of separation signed in January 1977 directed the defendant to make the mortgage payments on the family home. She did this during that year. When the partition sale occurred the mortgage payments she did not make in 1978 ($1,369.89) were paid the mortgagee as a part of the balance due on the mortgage. If she had paid the mortgage payments as directed by the judgment, they would have not been chargeable to the community under the lower court’s rationale in not allowing the community to be charged with the 1977 mortgage payments she made as directed. The trial court ordered that the defendant should pay plaintiff the full amount of the mortgage payments she did not pay in 1978 ($1,369.89). The trial court, however, did not allow plaintiff a charge against the community or a charge against the defendant for the mortgage payments which were made as directed in 1977.

Our interpretation of the judgment of January 1977, produces a different, and we believe a much fairer result. The judgment expressly requires the husband to pay the wife in addition to the alimony, $100 per month until the family home is sold. It also requires the wife to pay the monthly mortgage payments. She, of course, was residing in the former family home. Therefore, he was contributing $100 per month to the mortgage payment. The wife is paying the remainder as a part of her living expenses. He should not be entitled to charge her, upon dissolution of the community, more than he was contributing to the mortgage payment which she did not pay. His credit for the contribution, $100 per month made from his earnings after the judgment of separation, should be charged to the community upon partition.

Thus in these respects we amend the judgment below to allow the plaintiff ex-husband these charges against the community fund:

1976 mortgage payments $2,078.80
1977 contribution to mortgage payments 1,200.00
Listed community debts paid by husband after effective date of dissolution of community 4,406.57
Court costs paid 1,092.00
TOTAL $8,777.37

We affirm the $2,000 charge against the community arising from the wife’s expenditure of her separate funds towards the purchase of the Monroe residence. We amend to delete the award of the husband against the wife for the total of the three 1978 mortgage payments she failed to make as directed. It is impossible for us to determine from this record what credit the plaintiff ex-husband should receive because of the ex-wife’s failure to make the three 1978 mortgage payments. We have allowed him to charge against the community $100 per month for the contribution he made to the 1977 mortgage payments. He should be allowed at least that much against the ex-wife for her failure to make the three 1978 mortgage payments. Rather than remand and further protract this litigation, we believe justice will be served by simply allowing him that amount as a charge against her.

RECAPITULATION:
Community fund $28,196.08
Amount owed Mr. Morris from community $8,777.37
Amount owed Mrs. Morris from community 2.000.00 (10.777.371
Net community fund $17,418.71
One-half (14) community fund $ 8,709.35
Credit adjustment:
Amounts owed Mr. Morris by Mrs. Morris
Credit card transaction $500.00
1978 mortgage payment 300.00
% community funds received by her since effective date of dissolution of community 364.34 1,164.34
Amounts owed Mrs. Morris by Mr. Morris
!4 community funds received by him since effective date of dissolution of community 662.71
Resulting credit to Mr. Morris 501.63
Leaving adjusted share to Mrs. Morris ($8,709.35 less $501.63) or 8,207.73
Plus amount payable from community 2,000.00
Amount to be paid to Mrs. Morris: $10.207.73
Amounts to be paid to Mr. Morris: % net community Amount owed by community Credit adjustment 8,709.35 8,777.37 501,63
Total amount to be paid to Mr. Morris: $17,988.35
Proof equals net community $28,196.08

For reasons assigned in the court below and summarized here, except as herein amended, the judgment below as amended is affirmed at the cost of appellant.

      . In Morris v. Morris, supra, we reviewed the separation judgment, including alimony pen-dente lite and custody decrees, rendered by the trial court in this litigation. There we assessed court costs, constituting a community debt, to plaintiff as head and master of the community. Plaintiff thereafter paid the costs with his separate funds, thereby entitling him to reimbursement from the community. See Gouaux v. Gouaux, 211 So.2d 97 (La.App. 1st Cir. 1968); Succession of Hyde, 281 So.2d 136 (La.App. 3d Cir. 1973).

      . This figure represents various undisputed community debts paid by plaintiff with his separate funds thus entitling him to reimbursement from the community. See Gouaux, supra; Hyde, supra. These expenses are itemized as follows:
      Auto insurance $ 760.00
      Payments on 1975 Buick 1,474.20
      J. C. Penney 123.63
      Mary’s Flower Shop 7.88
      Holly Lake Ranch:
      payments 987.36
      1976 taxes 54.32
      Sears — tires 90.32
      Titch Dept. Store 56.10
      Bankamericard 646.84
      Mastercharge 17.33
      J. C. Penney 152.40
      Selber Bros. 36.19
      TOTAL $4,406.57


author: GULOTTA, Judge. REDMANN, Judge,

text:
    MULBERRY ASSOCIATION, INC. and Rader Jackson v. Ernest V. RICHARDS, IV, Ernest V. Richards, III, et als.
    No. 9717.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.
    Buchler, Morel & Hanewinckel, Harold A. Buchler, Jr., Metairie, Shushan, Meyer, Jackson & McPherson, Rader Jackson, New Orleans, for plaintiffs/appellants.
    Windmeyer & Dinwiddie, Bruce W. Din-widdie, New Orleans, for defendant/appel-•lee.
    Before SAMUEL, REDMANN, GULOT-TA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

The central issue with which we are confronted is whether use of a residence for a “law office” violates a restrictive covenant which states that “the use of said property shall be limited to residential purposes.” The trial judge concluded that such use is not violative of the restriction. We disagree. Accordingly, we reverse.

The matter was submitted on a stipulation of facts. One of the stipulations is that “defendant engages in the practice of law and maintains his office and home at the premises named in the suit.” The issue, therefore, before us is purely a legal one.

In Woolley v. Cinquigranna, 188 So.2d 701 (La.App. 4th Cir. 1966), a case similar to the instant one, the restriction stated that the property “shall be for residential purposes only.” We concluded in Woolley that a field manager for a manufacturer of brushes, who conducted his operation from his home, involving advertising for salesmen, interviewing these applicants at his home and storing merchandise in his garage, used his property in violation of the restriction. Because of the similarity in language between restrictions in the Wool-ley case and our case, and because the traffic activities of the manager are not unlike those of an attorney, we are persuaded by the result reached in the Woolley case.

We distinguish Wax v. Woods, 209 So.2d 329 (La.App. 4th Cir. 1968), writ denied, 252 La. 467, 211 So.2d 330 (La.1968), relied on by the trial judge and defendants. In the cited case, Dr. Wax, a podiatrist, practiced his profession from an office located in his home. The lot was classified as A-residential, single family residence, and the building restrictions provided that the lot would not be used for other than “residential purposes.” This court concluded in Wax that use of the premises by the doctor did not violate the restriction. In so holding, the Wax court pointed out that the building restrictions allowed the use of “one professional sign” of certain size. Under the circumstances, the Wax Court concluded that the drafters of the building restrictions contemplated use of the lots for “home occupations”. The court went on to say that the zoning ordinance and the building restriction, to that extent, were compatible and in harmony.

Unlike the Wax case, the restrictive covenant in our case, states:

“The said lot and/or premises, when acquired, shall not be used, leased or otherwise employed for advertising signs or billboards; . . . ”

At no place in our restrictions, do we find any indication that a home occupation might be allowed. Accordingly, we' hold that defendants are in violation of the subdivision’s building restrictions. We interpret the restrictions in the instant case more akin to Woolley than to the 'Wax case.

We reject two remaining contentions raised by defendants in this appeal. We find no merit, first, to defendants’ claim that because of plaintiff’s failure to show irreparable injury, no entitlement exists to injunctive relief. Well established is the rule that injunctive relief is a proper remedy to prevent the violation of building restrictions. Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947); Oak Ridge Builders, Inc. v. Bryant, 252 So.2d 169 (La.App. 3rd Cir. 1971), writ denied 259 La. 945, 253 So.2d 384 (1971).

Finally, we reject defendants’ claim that the trial judge erred in failing to maintain an exception of no right of action filed in connection with Rader Jackson’s (a property owner in the subdivision) claim. According to defendants, the subdivision developers assigned to Mulberry Association the right to the enforcement of the restrictive covenants and because Rader Jackson is a member and president of Mulberry Association, he waived this right, as a property owner, to enforce the restrictions.

We do not agree. In Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1961) the Supreme Court recognized that as long as restrictions are of any value to the party possessing rights under these restrictions, he may enforce them. In Oak Ridge Builders, Inc. v. Bryant, supra, a permanent injunction was granted restraining violations of restrictions in a suit filed by Oak Ridge, Inc. and thirteen property owners. The Oak Ridge court stated that where restrictions are violated, parties within a subdivision have the right to enjoin the activity. We have been cited no authority by defendants in support of their contention, nor has our research developed any jurisprudence more directly on point. Based on the Guy-ton and Oak Ridge Builders, Inc. cases we conclude the property owner in the instant case has not waived the right to enforce the violations.

Consistent with the foregoing, the judgment in favor of defendants is reversed and set aside. Judgment is now rendered in favor of plaintiff, ' Rader Jackson, and against defendants enjoining the use of the premises 100 Mulberry and 1200 Metairie Road as a law office. Costs to be paid by defendants.

REVERSED AND RENDERED.

REDMANN,- J., dissented with written reasons.

REDMANN, Judge,

dissenting.

“When you say Budweiser, you’ve said it all!” is but an advertising slogan. Yet it makes as much sense as plaintiff’s argument: when you say “use of said property shall be limited to residential purposes,” you’ve said it all — including “no home occupations.” Slogan-value aside, the truth is you have said little: only that the land is to be used for residences — not stores, not office buildings, not factories — nothing but residences.

You haven’t even said “no Double Cottages or Duplexes or Apartments,” you agree, because you had to say that in another restriction in the same document.

You haven’t said “no advertising signs or billboards,” because you had to say that in another restriction.

In fact, you haven’t even said “no cows or hogs” — you had to say that in another restriction, too!

If the subdivider understood “residential purposes” not to exclude cows and hogs in 1946, did he understand it to exclude doctors and lawyers?

Does a lawyer’s incidental use of his residence (within the 15% of space limitation of the local zoning ordinance) to receive telephone calls or mail from clients, or to entertain clients “socially”, or to read his advance sheets, or to work on briefs at night violate that land use limitation to “residential purposes”? Or does violation occur upon an undisguised business visit by one or more clients?

“Residential purposes” has, from time immemorial, been understood in this metropolitan area to include home occupations such as professional practice. Zoning ordinances in this area (while not overriding narrower restrictive covenants) have always allowed home professional practice in the most restrictive residential areas. The drafter of the restrictive covenants in Wax v. Woods, La.App. 4 Cir. 1968, 209 So.2d 329, writ refused 252 La. 467, 211 So.2d 330, still understood “residential purposes” to allow professional practice as late as 1960 (14 years after our restrictions) because his restrictions to “residential purposes” nevertheless permitted “one professional sign of one square foot,” clearly indicating (as Wax held) that, to that drafter’s understanding, “residential purposes” included professional practice in one’s home.

One can well sympathize with neighbors’ desire for the extension of their homes’ privacy, tranquillity and security throughout their whole subdivision. But a limitation of land use to “residential purposes”, especially more than 30 years ago, did not express that desire to the extent that plaintiff urges today. It did not say then and therefore does not mean now that a lawyer or a doctor may not practice his profession in his home, any more than it said or means that a professional artist may not paint or that a professional writer may not write in his own home.

“No home occupations” could have been said as easily, and with at least as much reason, 33 years ago, as “nor shall cows or hogs be kept thereon.” “Residential purposes” didn’t say it.

      . The trial judge maintained an exception of lack of procedural capacity to the claim of Mulberry Association Inc. No appeal has been taken from that judgment.


author: PER CURIAM.

text:
    CITY OF NEW ORLEANS, Ernest N. Morial, Reynard J. Rochon and James C. Parsons v. POLICE ASSOCIATION OF LOUISIANA, TEAMSTERS LOCAL NO. 253, Vincent J. Bruno, Peter L. Dale, Anthony W. Cannatella, David S. Bordelon, John W. Willoughby, Donald S. Lally, Louis J. Shaw, III, and all other Employees of the Department of Police of the City of New Orleans, whose names are not known at this time, who are acting in concert with the other named Defendants herein.
    No. 10368.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 1979.
    Donald A. Hoffman, City Atty., Thomas P. Anzelmo, Sr., Galen S. Brown, Deborah C. Ziegler, Asst. City Attys.,' for plaintiffs.
    Sidney M. Bach, New Orleans (John W. Ormond, New Orleans, of counsel), for defendants.
    Many, Lococo & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for intervenor (Civil Service Commission of The City of New Orleans).
    Sanders, Downing, Kean & Cazedessus, R. Gordon Kean, Jr., Baton Rouge, for ami-cus curiae (Louisiana Municipal Association).
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   PER CURIAM.

The Civil District Court preliminarily enjoined a strike by a union of police officers against the City of New Orleans, reasoning that the police have no right to strike. We granted a writ of review to decide that question because no Louisiana statutory law or decision of an appellate court has done so.

In other states, every court that has considered the question has decided that, in the absence of a statute governing public employee strikes, public employees have no right to strike or engage in work stoppages. An Annotation at 37 A.L.R.3d 1147, 1156-1157 (1971), lists three columns of cases from Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Rhode Island, Tennessee, Washington and West Virginia as applying or at least recognizing the rule that public employees are denied the right to strike even in the absence of an express statutory prohibition. The United States Court of Appeals for the Fourth Circuit, in Bennett v. Gravelle, 1971, 4 Cir., 451 F.2d 1011, cert. dismissed R. 60, 1972, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692, has also reached that conclusion.

Although the case before us does not present the broad question of the right of any public employee to strike, we hold that a strike by police officers must be prohibited.

In the case of a police strike, the concerted refusal to work by the peace-keeping employees of the government not only leaves society defenseless against crime but even inspires lawlessness.

No comparable harm can come to society in the case of a strike against ordinary private business. Striking employees of a private business can bring their employer to his knees without endangering the public health and safety, while striking police officers cannot.

More swiftly and surely than any other, a strike by law enforcement officers takes law enforcement and consequently the rule of law itself from our society. A police strike begins as anarchy and leads towards terrorism.

Even the American Federation of State, County and Municipal Employees, AFL-CIO, in its 1966 statement condemning as unfair one-sidedness the prohibition of public strikes, supported a different treatment for police: “AFSCME insists upon the right of public employees — except for police and other law enforcement officers — to strike.” In respect to their threat to society’s existence, for example, the difference between strikes by police and by museum employees is obvious. Society can tolerate the temporary closing of a museum, but not the suspension of law.

We agree with the union’s view that the right of government employees to freedom of speech and peaceably to assemble and to petition government for redress of grievances, U.S.Const. amend. I, La.Const. art. 1 §§ 7 and 9, exists in respect to their relations with the government as employer; see Tassin v. Local 832, Nat. U. of Police Off. of AFL-CIO, La.App. 4 Cir. 1975, 311 So.2d 591. Government employees can, however, as they did in Tassin, speak freely and peaceably assemble and petition their government without striking. To enjoin striking by police does not deprive them of those constitutional rights.

Finally, we recognize that the absence of the threat of strike, which is the employees’ ultimate weapon in labor negotiations, places the union at a disadvantage in collective bargaining. Nevertheless, the overriding concern for public safety, health and welfare requires that strikes by policemen be declared illegal.

Accordingly, the judgment preliminarily enjoining the strike by defendants is affirmed.

      . The experiences of Boston in 1919 and Montreal in 1969 in police strikes are reported from contemporary sources in Burton and Krider, The Role and Consequences of Strikes by Public Employees, 1970, 79 Yale L.J. 418, 433-434: breaking into department stores and looting by “good-looking men, mature in years, bearing all the earmarks of a lifetime of sane observance of property rights”; “I don’t mean hoodlums and habitual lawbreakers, 1 mean just plain people committed offenses they would not dream of trying if there was a policeman standing on the corner.” Burton and Krider’s conclusion, from their factual observation that the deterioration of public order occurs almost immediately (citing other Boston and Montreal statistics), was that police strikes should be expressly outlawed in advance: “There is simply no time to seek an injunction.”
      While arguing for the right to strike by public employees in employment less essential to the continuation of civilized society, other scholars agree with Burton and Krider that “[f|or some public sector services, however — namely police and fire protection — the probability that a strike will result in immediate danger to public health and safety is so substantial that strikes are almost invariably inappropriate.” Id at 437. “[N]o one would seriously argue that such a strike should be permitted.” Comment, Labor Problems in Public Employment, 1966-7, 61 Nw.U.L.Rev. 105, 117. “Services of policemen, firemen, and possibly sanitationmen should be classified as ‘essential’ [to the public health and safety], and the rigid prohibition against striking should be enforced.” Comment, Public Employees: No Right to Strike, 1971, 38 Tenn.L.Rev. 403, 421. “[A]s to those areas of public employment controlling public health and safety [“policemen, firemen, health officials and others similarly situated”], the right to strike against the government should be denied.” Comment, Right of Public Employees to Strike, 1966-7, 16 DePaul L.Rev. 151, 164.

      .International Executive Board, AFSCME, AFL-CIO, Policy Statement on Public Employee Unions: Rights and Responsibilities, quoted in Comment, Public Employees — The Right to Organize, Bargain and Strike, 1970, 19 Cath.U. L.Rev. 361. Burton and Krider, supra, 79 Yale L.J. at 433, add that any AFSCME “local of police officers that engages in a strike or other concerted refusal to perform duties will have its charter revoked.”
      In our review of the legal literature on the question we have also been assisted by Bernstein, Alternatives to the Strike in Public Labor Relations, 1971, 85 Harv.L.Rev. 459; Kheel, Strikes and Public Employment, 1969, 67 Mich. L.Rev. 931; Haemmel, Government Employees and the Right to Strike — The Final Necessary Step, 1971, 39 Tenn.L.Rev. 75; Vaughn, Principles of Civil Service Law, 1976, § 9.4; Burton, Can Public Employees Be Given the Right to Strike?, 1970, 21 Lab.L.J. 472; White, The Right to Strike in the Public Sector, 1970, 21 Lab.L.J. 479; Bers, The Right to Strike in the Public Sector, 1970, 21 Lab.L.J. 482; Comment, The Strike and Its Alternatives: The Public Employment Experience, 1975, 63 Ky.L.J. 430; Comment, Prohibition Revisited: The Strike Ban in Public Employment, 1969 Wis.L.Rev. 930; Comment, Public Employee Labor Organization, 1975, 21 Loy.L.Rev. 911; and Note, Public Employee Strikes, 1969, 21 S.C.L.Rev. 771.

      . The union, in argument, misinterprets the latter part of the judgment, beginning “that the defendants named herein immediately take The union argues that that part of the judgment directs individual police officers to return to work. In our view, the proper construction of that part of the judgment is that it only orders the union and its named officers to direct the members to return to work. The judgment orders individual police officers to stop striking, but it does not and can not order any individual police officer to return to work.


text:
    Janet Lassen SIZELER v. Ricky M. SIZELER.
    No. 10202.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 1979.
    Gilbert V. Andry, III, New Orleans, for plaintiff-appellee.

      Thomas M. Willmott, Metairie, for defendant-appellant.
   ORDER

This is a motion to dismiss a suspensive appeal.

On March 10, 1978, the husband was ordered to pay his wife alimony pendente lite in the amount of $275 per month. There was no appeal from that judgment.

In August, 1978, the wife filed a rule to increase alimony pendente lite and to annul the March judgment based on the husband’s deliberate misstatement of income. After a hearing, the trial court found that the husband had deliberately deceived the court and rendered judgment which “reformed and amended” the March judgment to provide for alimony at the rate of $500 per month from December 22, 1977 (the date of the filing of the original petition for separation and alimony) to September 15, 1978, and at the rate of $317 per month beginning September 15, 1978. The judgment also (1) declared that the amount of alimony payments was immediately made execu-tory, (2) found the husband was in contempt of court, and (3) sentenced him to a prison term and fine, which were suspended on the condition that he pay the cumulated alimony payments immediately and future payments timely. The husband devolutively appealed from that portion of the judgment which increased the alimony to $317 per month beginning September 15, 1978, and he suspensively appealed from that portion of the judgment which retroactively increased the alimony to $500. The wife then moved this court to dismiss the suspen-sive appeal, and that motion is now before us for adjudication.

There is no suspensive appeal from a judgment relating to alimony. C.C.P. art. 3943; Malone v. Malone, 282 So.2d 119 (La.1973). However, the judgment which is suspensively appealed in this case is one annulling a prior judgment which had become final and definitive. Such a judgment, rendered pursuant to C.C.P. art. 2004, may be appealed suspensively.

Accordingly, the motion to dismiss the suspensive appeal is denied.


author: CUTRER, Judge. WATSON, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Daniel W. JOHNSON, Defendant-Appellee.
    No. 6809.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Johnie E. Branch, Jr., Jerry F. Davis, Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Edward G. Randolph, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, WATSON, CUT-RER, SWIFT and DOUCET, JJ.
   CUTRER, Judge.

The State of Louisiana, through the Department of Highways, expropriated for highway purposes a portion of a tract of land owned by defendant, Daniel W. Johnson. The taking was effectuated under the provisions of LSA-R.S. 48:441, et seq. The Department of Highways deposited the sum of $10,647.00 as just compensation for the property taken, consisting of $2,412.00 for the value of the land and $8,235.00 as severance damages. The trial court rendered judgment awarding defendant $24,210.00 for the taking, subject to a credit for the deposit, together with $3,390.75 as attorney fees. The trial court itemized the award as follows:

Property taken $ 7,730.00
Severance damages $11,480.00
Inconvenience $ 5,000.00
TOTAL AWARD $24,210.00.

From this judgment the Department of Highways appeals.

The issue presented by the appeal is whether the trial court abused its discretion in the amount awarded the defendant for the loss of his property and for his attorney fees.

PROPERTY TAKEN AND SEVERANCE DAMAGES

The property has approximately 265 feet of frontage on Highway One in a rural area near Alexandria and is about 2,000 feet deep. It contained slightly more than 10 acres. Located thereon is a frame residence with about 1500 square feet and a porch with about 200 square feet, a garage, well house, workshop, chain link fencing, a gate, 1200 square feet of gravel driveway across 24 linear feet of culverts 36 inches in diameter, 65 square feet of concrete walk.way, and a septic system.

The area taken contained .573 acres which included practically all of the defendant’s front yard. Following the taking, the right of way line will be located within 7 or 8 feet of the house. Several trees were located on the property taken.

Hab Monsur testified as an expert appraiser on behalf of defendant. He valued the land taken at $5,730 and the improvements, consisting of a fence, gate, culverts, gravel drive and walkway, at $2,000. He considered the value of the trees in arriving at the land value. He estimated that the residence had been damaged by 80% of its current value, or $11,480. In Monsur’s opinion, there is no market for a residence within eight feet of a heavily traveled main thoroughfare, and the only value remaining in the wooden frame residence is for salvage purposes. Monsur apparently considered only severance damage to the old residence and did not evaluate the severance loss, if any, to the remaining land.

Gene N. Cope testified as an expert appraiser on behalf of the Department of Highways. In Cope’s opinion the property retains its value as a residence despite its proximity to the highway. Cope’s evaluation was below the amount deposited by the Department of Highways although he signed the initial estimate of just compensation. He valued the land taken at $4,155 and severance damages at $3,045, resulting in a total estimate of $7,200. Cope admitted that he could not find any residences in the area located within eight feet of the highway right of way.

The trial court, in its reasons for judgment, found Monsur’s evaluations on behalf of the landowner more persuasive than those presented by Cope and made the awards set forth herein. We have reviewed the testimony of these experts and find no abuse of discretion by the trial court in its awards for land value and severance damages.

INCONVENIENCE DAMAGE

A more troublesome question is presented by the award of the trial court of $5,000 for “inconvenience” caused the defendant by the taking.

Johnson testified that he had resided in his original residence for 30 years and was contented there until this expropriation took place. He is now in the process of constructing a new home approximately 100 feet back from the new right of way line. Johnson testified that he would not be able to sleep with the heavy traffic and dangerous conditions brought about by the widening of the highway. He testified as to previous accidents occurring at a nearby intersection. Johnson further stated that while the construction of the proposed highway was being conducted, his wife would have trouble getting into the residence area and it may necessitate parking her car across the highway during the construction phase thereof. The inconvenience of having to move from his existing residence to the new residence was testified to. He estimated that it would cost $150.00 to move the furniture to the new home. The defendant also contends he should be awarded damages for aesthetic losses due to the taking of trees and the existence of a water well house which will be to the front of the new home.

In making the award for inconvenience, the trial court reasoned in part as follows:

“In addition to the above the landowner asserts claims for damages heretofore not recognized as items for which compensation is due in expropriation proceedings. The landowner urges that language in the Louisiana Constitution of 1974 contemplates a broadening of the scope of compensation. In particular the landowner claims $150 as expenses for moving from the residence during construction of highway improvements and $5,000 for general inconvenience. The claim for inconvenience, it is suggested on behalf of the landowner, should be determined subjectively. In support of this contention, counsel cite 21 Loyola Law Review 23. These and other authorities do appear to indicate that the framers of the 1974 constitution contemplated that a landowner whose property is taken be awarded more than the mere market value of the property taken together with any severance damages which may result.”

The question presented is whether such an award is authorized by Article 1, Section 4 of the 1974 Louisiana Constitution which provides in part that “. . . the owner shall be compensated to the full extent of his loss.”

This court, in the recent case of State, through the Department of Highways v. Champagne, 356 So.2d 1136 (La.App. 3rd Cir. 1978), had under consideration the effect of the above constitutional provision when it stated as follows:

“Recently, this Court, in State Through Department of Highways v. Alexandria Volkswagen, Inc., 348 So.2d 176 (La. App. 3rd Cir. 1977), stated:

‘A landowner whose property has been expropriated for public purpose is entitled to just and adequate compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been had his property not been taken. Article 1, Section 4 La.Const. of 1974.’
“At the outset, we determine that a proper interpretation of the provisions of LSA-Const. Art. 1, § 4 necessarily implies that the compensation due the defendant be in a monetary form. We consider the intent of the redactors of the 1974 Constitution to be that once the landowner has received compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been, had his property not been taken, the landowner has received compensation ‘to the full extent of his loss’. Thus, we must reject the contention of counsel for defendant that under the new Constitution, a con-demnee is entitled to whatever he subjectively believes to be his loss.”

The award for inconvenience herein, other than the estimated $150 for moving, is a subjective type of loss. It is based solely upon the testimony of the defendant, which was self-serving, wherein he claims the loss by virtue of his dissatisfaction with the proximity of his residence to the new highway, the aesthetic adversity by the loss of trees, and the existence of a pump house in the front of his house, inconvenience of parking while construction is being performed, and the other subjective losses he may complain of due to the taking. Such losses are closely related to losses such as mental anguish, worry, anxiety, grief, and the like. We must reiterate, as we did in Champagne, supra, that under the new Constitution a landowner in an expropriation suit is not entitled to subjective losses or those losses “he subjectively believes to be his loss.”

We conclude and so hold that the provisions of LSA-Const. Art. 1, § 4 do not authorize the award of the $5,000.00 subjective award of the trial court. This portion of the judgment must be reversed.

The $150 estimate for moving expenses and the $795 estimate for fill dirt placed under the new house are expenses incidental to the construction of defendant’s new home. The defendant makes no claim for the cost of the new home; thus these incidental expenses are not recoverable.

ATTORNEY FEES

The remaining issue is attorney fees awarded defendant. The trial court awarded $3,390.75 as attorney fees which is 25% of the difference between the amount of the deposit, $10,647.00, and the amount awarded, $24,210.00, in the trial court’s judgment. Since we are reducing the award by $5,000.00, we must reduce the attorney fees. LSA-R.S. 48:453 provides in Section E that:

“Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

The attorney fees will be reduced to 25% of the difference between the award, $19,-140.00, and the amount deposited in the registry of the court, $10,647.00, or $2,140.75.

For the reasons set forth herein, the judgment of the trial court awarding $5,000.00 for inconvenience is reversed, thereby reducing the award to $19,210.00. The allowance for attorney fees is reduced to $2,140.75. In all other respects, the judgment of the trial court is affirmed.

Costs insofar as allowed by law are taxed against the State of Louisiana.

AMENDED AND AFFIRMED IN PART; REVERSED IN PART.

WATSON, J., concurs in part and dissents in part and assigns reasons.

WATSON, Judge,

concurring in part and dissenting in part:

I concur with the majority in affirming the awards for property taken and for severance damages, but I dissent from the reversal of the award for inconvenience.

The question is whether substantial meaning is to be given the new wording of the Louisiana Constitution of 1974. As posed in the present case, the issue is whether the uprooting of a family from their home of thirty years is to be compensated or whether their sole recompense is the bare-bones value of the ground and the reduction in value of the remainder.

The basis for the additional $5,000 awarded to landowner Johnson is the inconvenience, aesthetic loss and other intangible losses he will suffer in abandoning his residence of thirty years and moving into another one. Does the language of LSA-Const.1974 Art. 1 § 4, stating that: “. . . the owner shall be compensated to the full extent of his loss” require compensation for this type of damage?

An explanation of the meaning of this provision by Louis “Woody” Jenkins, member, Louisiana House of Representatives; delegate, Louisiana Constitutional Convention; member, Committee on Bill of Rights and Elections; and co-author, Louisiana Declaration of Rights, is found in the Loyola Law Review where he wrote:

“The amount of compensation to be paid when property is taken is not merely ‘just compensation’ as that term has been understood under the fifth and fourteenth amendments of the Federal Constitution and the 1921 State Constitution. Instead, the owner must be compensated ‘to the full extent of his loss.’ This is intended to include things ‘which, perhaps, in the past may have been considered damnum absque injuria, such as cost of removal,’ attorney fees, inconvenience, loss of aesthetic value or business profits and so forth. The loss to be measured is the loss sustained by the owner himself. The Section very carefully says that the owner is to be compensated ‘to the full extent of his loss’ instead of ‘to the full extent of the loss’ (emphasis added).” 21 Loyola Law Review 23, 24. [footnotes omitted]

State, Through Dept. of Highways v. Constant, 359 So.2d 666 (La. App. 1 Cir. 1978) writ granted, 362 So.2d 575, recognized that intangible losses can be compensated under this article. State, Through Dept. of Highways v. Champagne, 356 So.2d 1136 (La. App. 3 Cir. 1978), in dicta, rejected the idea of compensation for anything but pecuniary losses.

Although the amount of loss is difficult to evaluate, Johnson’s new residence will undoubtedly suffer from being located behind his well shed without the screen of trees and shrubbery which now serve as a highway buffer. This type of loss was compensated in State, Dept. of Highways v. Bland, 355 So.2d 283 (La. App. 2 Cir. 1978), as an item of severance damages. Although the only testimony to support this item here is that the landowner, we, like the trial court, find it candid and convincing.

Further, being effectively evicted from a residence occupied for thirty years is an intangible loss. Unless it is compensated, the landowner cannot be made whole, which we understand to be the intent of the 1974 Constitution. I cannot say that the trial court was “clearly wrong” in making the award to the owner for inconvenience. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

My analysis would require also the full award of attorney’s fees as made by the trial court.