author: PAVY, Judge. DOMENGEAUX, Judge

text:
    Robert C. JORDAN, Plaintiff and Appellant, v. LeBLANC AND BROUSSARD FORD, INC., et al., Defendants and Appellees.
    No. 5218.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Henry A. Bernard, Jr., New Iberia, for plaintiff and appellant.
    Landry, Watkins, Cousin & Bonin by Alfred S. Landry, New Iberia, Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, Roy & Forrest by L. Albert Forrest, New Iberia, for defendants and appellees.
    Before HOOD, CULPEPPER, DOM-ENGEAUX, WATSON and PAVY, JJ.
   PAVY, Judge.

Plaintiff, Robert C. Jordan purchased a new Ford truck from defendant, LeBlanc and Broussard Ford, Inc. of New Iberia. After experiencing difficulty with the vehicle, plaintiff tendered it to the vendor requesting rescission of the sale. Defendant-vendor refused to rescind the sale, and plaintiff brought this redhibitory action against LeBlanc and Broussard Ford, Inc., and the manufacturer, Ford Motor Company, seeking rescission of the sale, expenses, and damages. Defendant, Ford Motor Company, filed an answer and made a general appearance; defendant LeBlanc and Broussard Ford, Inc. filed a dilatory exception of prematurity and in the alternative a peremptory exception of no cause of action, both exceptions based upon plaintiff’s failure to comply with Civil Code Article 2531, as amended. After a trial on the exceptions, the trial judge dismissed plaintiff’s suit with prejudice as to both defendants, finding merit in the exceptions raised.

In Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973) it was held that a seller was not entitled to an opportunity to repair a defect in a thing sold as a condition precedent to a rescission suit. At the time of that decision, Civil Code Article 2531 read as follows:

“The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.”

By Act 673 of 1974 that article was amended to read as follows:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

Civil Code Article 2521 reads:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

It is apparent that the reference to amended Article 2521 does not connect logically due to the absence in the latter article of any standards or conditions for the right to repair. A companion bill to amend the latter article failed to pass in the 1974 legislative session. See 49 Tulane Law Review 487.

We do not think the absence in Article 2521 of any conditions or guides for the repair right should render nugatory the 1974 amendment to Article 2531. Reason and basic statutory construction require that some sensible effect be given to the language “ . . .is only bound to repair, remedy or correct the vice . . . ” Instead of compounding the legislative mistake by disregarding that language, we feel obliged to salvage what we can from the legislative will.

An absurd result is not to be imputed to the legislature in the enactment of a law. State ex rel. Graham v. Republican Central Committee of Louisiana, 193 La. 863, 192 So. 374 (1940). Constitutional and legislative enactments are presumed to be valid and to have meaning. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1959). A court is constrained to construe an expression in a statute so as to give it effect rather than to render it meaningless. State v. Mestayer, 144 La. 601, 80 So. 891 (1919). In construing different provisions of a statute, the court, as far as practical, should reconcile them, and, if possible, give a sensible and intelligent effect to each. Woodruff v. Producers’ Oil Company, 142 La. 368, 76 So. 803 (1917).

Words may be rejected to effectuate legislative intent but not to change it. State v. Dudley, 159 La. 872, 106 So. 364 (1925). Where words and clauses which have inadvertently crept into statutes are clearly repugnant to legislative intent, such words and clauses may be disregarded. State v. Caldwell, 170 La. 851, 129 So. 368 (1930).

In Devine v. National Life & Accident Insurance Co., 166 So. 522 (La.App.Orl.1936) it was said:

“Statutes must be given a reasonable interpretation. While it is true that courts have no concern with the wisdom or policy of a statute, their function being confined to its interpretation, it is also true that ‘occasions may now and then arise when, from the necessity to make particular statutes intelligible and operative, courts will correct or ignore obvious in-advertences therein’. Shreveport v. Southwestern Gas & Elec. Co., 140 La. 1078, 74 So. 559.”

In Vol. 82 C.J.S. Verbo Statutes § 343, p. 687, dealing with surplusage and unnecessary matter, the rule is stated:

“Words having no meaning or in harmony with the legislative intent as collected from the entire act may be treated as surplusage, and may be wholly disregarded in the construction of the act in order to effectuate the legislative intent; but words in a statute should not be construed as surplusage, if a reasonable construction will give them some force and meaning is possible.”

We find it impossible to give meaning in the amendatory language to the reference to Article 2521 and will treat it as surplusage. It is apparent that the legislature attempted to give the right to repair and to specify the terms and conditions of such right. It failed in the latter, but we do not think there is such an interdependence or necessary connection between these two aims that they must both fall or stand together. Accordingly, we hold that the 1974 amendment to Article 2531 of the Civil Code effectively gives a good faith seller the right to repair or correct a defect before suffering rescission of a sale. Until the legislature provides specific rules concerning the terms and conditions of the right to repair, there is no alternative in the judiciary but to decide each case on its peculiar circumstances with due regard being given to the competing interests of the consuming public and the retailers and manufacturers.

The petition herein expressly alleges that the defendants knew of the defects. Civil Code Article 2545 states:

“Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable' to the buyer in damages.”

It is noted that this article is found in Paragraph 3 of Section 3 (Of The Vices Of The Thing Sold) of Chapter 6 of the Civil Code title dealing with sales. Paragraphs 1 and 2 of that Section 3 deal respectively with redhibitory vices and price reduction vices. Thus, the plan is to deal with the two types of vices in relation to their degree of inconvenience or uselessness and separately (by Paragraph 3) to deal with those vices of which the seller knew, regardless of the degree of inconvenience or uselessness. All these provisions are in pari materiae and must be construed in relation to each other. We cannot conclude that this codal scheme creates such a separate cause of action for rescission under Article 2545, that an allegation of knowledge of the defect precludes the seller from showing that he did not know of the vice and from demanding the rights accorded to a seller in good faith by LSA-C.C. art. 2531, as amended. Thus the right to an opportunity to repair in the amendment to Article 2531 is available to a defendant in a redhibitory action if he shows that he did not knew of the defect, whether there is an allegation of knowledge of the defect or not.

By the language of that amendment, the right to an opportunity to repair is a condition precedent to rescission if the seller is in good faith. This right should be available in limine under the exception of prematurity. To hold that the right to repair can only arise on the merits or as some sort of affirmative defense would allow a petitioner to force a defendant to full trial on the question of the existence and nature of the defect which may or may not exist and which may or may not be easily correctable. We think such an untoward result is the real reason for an exception of prematurity. If the right to repair is deferred to the merits and then accorded, there will always be the possibility of another trial to again determine the existence and nature of the defect after repair. In most cases, the resolution of the question in limine will be more advantageous to all parties regardless of the outcome.

Code of Civil Procedure Article 929 states that the dilatory exception “ . . . shall he tried and decided in advance of the trial of the case.” Article 930 provides that as to an exception of prematurity (among others) evidence may be introduced “ . . . to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

Perhaps in some situations, for administrative reasons, the trial judge should refer the exception of prematurity to the merits or overrule it with reservation to allow correction of the defect during a stay or trial if the evidence warrants such action. The trial judge decided to dispose of the exception of prematurity in limine, and we are not inclined to overturn his procedural action in that regard.

The evidence shows that plaintiff wanted a special type truck which defendant-retailer did not have in stock. Arrangements were made to obtain one through a dealer in Monroe. The defendant-retailer was to purchase from the dealer in Monroe and sell to plaintiff. A firm deal was made between the parties and a deposit given. Plaintiff and one of defendant-retailer’s employees went to Monroe, and plaintiff drove the truck back to New Iberia. Upon return, he told the shop foreman that there was a noise in the transmission. The defendant-retailer had work done on the transmission and serviced the car in the usual manner for delivery. Plaintiff accepted the truck and one month later returned it. His attorney wrote a letter expressing the tender and demanding return of the purchase price. This letter complained of further difficulties with the transmission and the throwing of a rod. Plaintiff’s petition alleged that the truck had a defective transmission and a defect in the engine.

Technically, the sale had been completed before the trip to Monroe, or at least when the truck was designated for this transaction. It is obvious that defendant-retailer knew nothing of any alleged defects in the engine prior to the sale regardless of when we would consider the sale to have been completed. With regard to the alleged transmission defect which showed up on the trip from Monroe to New Iberia, we think the defendant-retailer should be given an opportunity to further repair it even if we were to hold that the sale was not completed until the servicing and delivery. The evidence indicates that to the defendant-retailer’s knowledge the defect was corrected during servicing and plaintiff accepted delivery of the truck. There was no evidence that the defendant knew the transmission had not been properly repaired. It was one month later before plaintiff returned the vehicle complaining of further transmission problems. Accordingly, under the specific circumstances of this case, we think the defendant retailer should be given an opportunity to further repair the transmission defect even if the defect alleged in the petition is the same as that dealt with in servicing.

The district court’s judgment sustained the exceptions of prematurity and of no cause of action filed by LeBlanc and Broussard Ford, Inc., and it dismissed the suit with prejudice as to both defendants. Defendant Ford Motor Company has answered, without excepting, and the dismissal as to it thus was not proper. The dismissal as to LeBlanc and Broussard Ford, Inc., should have been without prejudice. See Code of Civil Procedure Article 933 and Comments thereunder.

The petition states a cause of action against defendant LeBlanc and Brous-sard Ford, Inc., and the district court erred, therefore, in sustaining the exception of no cause of action filed by that defendant. For that reason, that part of the judgment appealed from which sustains the exception of no cause of action filed by LeBlanc and Broussard should be reversed. Since we have concluded that the suit must be dismissed without prejudice on the exception of prematurity filed by LeBlanc and Broussard Ford, Inc., however, we consider it unnecessary to expressly include in our decree a reversal of the district court’s judgment insofar as it sustained the exception of no cause of action filed by that defendant.

Accordingly, the district court’s judgment is reversed insofar as it dismisses the suit as to Ford Motor Company, and the case is remanded to the trial court for further proceedings as to that defendant. Insofar as LeBlanc and Broussard Ford, Inc., is concerned, the judgment appealed from is amended to decree that the exception of prematurity filed by that defendant is sustained, and that the suit is dismissed without prejudice as to LeBlanc and Broussard Ford, Inc. As thus amended, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by plainti f f-appellant.

Amended and affirmed in part; and reversed and remanded in part.

WATSON, J., concurs in the result.

DOMENGEAUX, J., dissents and will assign written reasons.

DOMENGEAUX, Judge

(dissenting).

I respectfully dissent.

The majority admits that plaintiff’s petition was filed under C.C. Art. 2545 (bad faith vendor). Additionally, it correctly states that defendant’s exceptions of prematurity and no cause of action were based upon plaintiff’s failure to tender for repair pursuant to the 1974 amendment to C.C. Art. 2531 (good faith seller).

The majority satisfies itself with a vague statement concerning the applicability of the 1974 amendment to C.C. Art. 2531 to good faith vendors, but makes no mention of the effect of the amendment upon vendors, in bad faith, who are covered by C.C. 2545. I feel that this issue is crucial and at the very center of this dispute, and find that the majority opinion lacks the emphasis necessary to enunciate a clear rule concerning the applicability of the amendment to the latter statute.

Concisely stated, I feel that the 1974 amendment to Civil Code Article 2531 (allowing a good faith vendor a right to repair) has absolutely no effect upon Civil Code Article 2545. The amendment to C.C. 2531 provides that before the redhibitory action can be brought against a good faith seller, he must be first afforded an opportunity to repair the thing sold if it be defective. Only if this good faith vendor fails or refuses to repair or remedy the defect does the vendee’s right to sue in redhibition arise.

On the other hand, C.C. 2545 concerns itself with the seller who knew of the defects at the time of the sale but failed to declare them. Such a vendor is deemed to be in bad faith, and his liability is greater than that of his honest counterpart. While the good faith seller is bound only to restore the purchase price and expenses occasioned by the sale and for preservation of the thing, the bad faith seller is liable, in addition, for damages resulting from the sale and for attorney’s fees necessitated by the buyer’s prosecution of the redhibitory action.

This differential treatment of vendors based upon good and bad faith is not a new concept in the civil law. The dichotomy in treatment and liabilities between these respective sellers can be traced from the Roman law, through the French Civil Code, and to our very own statutes dealing with the subject. I refer to the excellent Law Review Article by the late Professor Clarence J. Morrow at 14 Tul.L.Rev. 529, in which it is stated:

“Articles 1645 and 1646 of the French Code are two of the most important provisions in the law of warranty, and about them has raged perhaps the greatest controversy in the whole field.
If the vendor knew of the defects of the thing, he is bound not only to return the price which he has received, but he is also liable to the purchaser for all damages.
If the vendor was ignorant of the defects of the thing, he shall only be bound to return the price and to reimburse to the purchaser the expenses occasioned by the sale (frais occa-sionés par la vente).
It would seem to be perfectly obvious that these articles attempt to consecrate a distinction between the respective liabilities of good faith and bad faith vendors. If the vendor was in bad faith, in that he sold the goods knowing their defective nature, he is to be penalized to the extent not only of returning the price to the vendee, but also of paying the latter damages. On the other hand, if the vendor was in good faith, and did not know of the defects, he is bound to return only the price and the frais occa-tionés par la vente, expenses occasioned by the sale.It will be remembered that in the Roman law the vendor who sold, knowing of defects, was guilty of dolus and was liable for damages to the vendee, whereas the innocent vendor, while theoretically liable for damages, practically could avoid them because the right against him was enforceable only by the jus retentionis of the defective goods. Moreover, these articles, like the others in this section of the Code, were taken from Domat and Pothier, whose writings reflect the Roman distinction of liability between good and bad faith vendors.” (Emphasis added)

In a separate Article found at 13 Tul. L.Rev. 560, the same author further discussed the rationale for making the distinction.

“The Louisiana Civil Code allows the positive interest where the seller fraudulently asserts an inexistent quality or conceals known vices of the thing. [C. C. 2545] It may be urged, by way of argumentum a contrario, that these provisions are exceptional in granting compensation beyond the negative interest. Such an argument would overlook the fact that these articles are but applications of the fundamental precept imposing the duty of good faith in contractual relations, which springs up at the very inception of the contract. Therefore, fraud in the inducement, as well as in the performance, entitles the victim to the positive interest.” (Emphasis added)

Thus it is clear that the civil law has always treated the bad faith seller more harshly than the honest vendor. Our Civil Code has adhered to the theory upon which this logical distinction is based. This fact is further evinced by the existence of the longer prescriptive period applicable to the bad faith seller (see C.C. Articles 2534 and 2546).

In 1974 the legislature amended C.C. 2531, expanding the rights of the good faith seller. There was, however, no similar amendment to C.C. 2545, and the opportunities of the bad faith seller remain more restricted, as they have always been. The legislature’s discrimination in favor of the good faith seller is consistent with the history and theory of the civil law in this area.

It is very clear to this writer, and I wish to emphatically state, that under no circumstances is the seller who is in bad faith entitled to an opportunity to repair, remedy or correct the defect in the thing sold before the buyer may institute the redhibito-ry action.

However, even though the majority seems to accept the above argued line of reasoning, they feel that if the redhibitory action is brought under the theory of C.C. 2545 (as was done in this case) an exception of prematurity, based upon failure to tender for repair under C.C. 2531, should be considered. This contention I cannot accept.

The redhibitory actions brought under C.C. 2531 and C.C. 2545 are based upon different theories, i. e. good and bad faith sales respectively. I humbly admit that I am completely at a loss to understand how a plaintiff’s action can be considered premature based upon his failure to meet a condition which is not a requisite to the institution and maintenance of the sui tunder his theory of the case.

Following the majority opinion, the buyer who sues under C.C. 2545 will have to litigate the entire issue of good or bad faith at the trial on the exception of prematurity. This issue is crucial to the success of an action brought under 2545, and I do not believe that such a case should be tried on exceptions. The majority is concerned that the good faith vendor may be forced to litigate under 2545, with success, and then be subjected to a second lawsuit should the vendee meet the requirements of C.C. 2531. I believe this approach is unrealistic. If a vendee has no basis for allegations of bad faith against his seller, he will gain no advantage, and in fact will endure unnecessary hardship and expenses in prosecuting a frivolous claim. On the other hand, if there is some basis for an assertion of bad faith on the part of the vendor, the issue should be decided at a full trial on the merits.

However, I feel that the above discussion- addressed to the majority’s fear of “double jeopardy” of the good faith seller may be academic. I have serious doubts that the exception of prematurity is applicable to a suit based upon even C.C. 2531.

Prematurity is raised by the dilatory exception. C.C.P. Art. 926. The function of the dilatory exception is defined by C.C.P. Art. 923:

“Art. 923. Functions of exceptions
The function of the declinatory exception is to decline the jurisdiction of the court, while the dilatory exception merely retards the progress of the action, but neither exception tends to defeat the action. The function of the peremptory exception is to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." (Emphasis added).

I believe that a careful reading of C.C. 2531, as amended, clearly shows that the vendee has no basis for the redhibitory action unless the seller cannot or will not repair, remedy, or correct the defect in the thing sold. Until the seller has failed or refused to meet this primary obligation, the buyer has no cause of action under the second clause of paragraph one of C.C. 2531. See the Article at 49 Tul.L.Rev. 484, 486, discussing the effects of the 1974 amendment to C.C. 2531 in which it is stated that:

“The noted amendment purports to affect the redhibitory action in at least four ways: (1) by providing that, as a prerequisite to the maintenance of the action, a buyer must afford the seller an opportunity to remedy the defect .” (Emphasis added).

To state it another way, the law provides no remedy against the good faith seller who has not been afforded an opportunity to repair or correct a defect in the thing sold. The obligation of the good faith seller is only that of repairing or remedying the defect. If he is unable or unwilling to remove the vice, then and only then does the obligation of the seller to return the purchase price arise.

By definition, the dilatory exception cannot “defeat the action”. Only the peremptory exception can serve that function. See the case of Pringle Associated Mortgage Corporation v. Eanes, 211 So.2d 399 (La.App. 1st Cir. 1968) in which the court said:

“Where the obligation presently exists but the right to enforcement has not accrued, either because the term for enforcement has not expired or because of the nonperformance or nonoccurrence of some act upon which enforcement is conditioned, the objection of prematurity falls within the classification of a dilatory exception which must be plead in lim-ine litis.” (Emphasis added).

The dilatory exception of prematurity presumes the existence of an obligation but addresses itself to the untimely filing of an action for enforcement of that obligation. Since the seller’s obligation to return the purchase price does not arise until after he has either failed or refused to repair the thing sold, I must conclude that the exception of prematurity is inapplicable to the situation presented by the instant litigation.

But, assuming arguendo, that the exception of prematurity can be applied in the case before us, I am of the opinion that no basis exists for the sustaining of that objection. Under the theory of the majority, two things must be shown before the exception of prematurity can be sustained against a redhibitory action brought under C.C. 2545. First, there must be proof of good faith on the part of the vendor to invoke the “prerequisite” of “tender for repair” necessary under C.C. 2531. Secondly, once good faith has been shown, the vendor must prove that the thing sold has not been tendered for repair.

Generally, for purposes of the trial of an exception, all well pleaded material allegations of fact in a plaintiff’s petition must be accepted as true. This leads one to the inevitable conclusion that the burden of proof lies with the exceptor. In the case at hand, the exceptions of prematurity and no cause of action were directed solely to the issue of whether tender for repair had been made by the vendee. There was absolutely no testimony relative to the seller’s good or bad faith which warranted a conclusion that the vendor knew not of the defects at the time the thing was sold. Since the plaintiff enjoys a presumption of the factual veracity of his pleadings, I feel that only strong, direct testimony concerning the seller’s good faith could have overcome the allegations of bad faith in plaintiff’s petition. A careful study of the record reveals that no such evidence was introduced, since the entire thrust of the exceptions was toward the issue of lack of tender for repair. Thus, even accepting the majority’s position that the exception of prematurity is applicable in this case, there are no facts to support the sustaining of that objection.

I would reverse the trial judge’s sustaining of the exceptions of prematurity and no cause of action and remand this case for a trial on the merits.

For the above and foregoing reasons I respectfully dissent.

      . I agree with the majority’s attempt to give credence to the legislature’s 1974 amendment to C.C. 2531, which was obviously an effort to legislatively overrule the case of Prince v. Paretti Pontiac, supra. However, I recognize the confusion created by the illogical reference to C.C. 2521 contained in said amendment. Since the defective reference is so obvious I feel that the legislature should clarify its intent in this matter.


source: Caselaw Access Project

author: MORIAL, Judge. BOUTALL, Judge

license: Public Domain

text:
    Rock COUSINS v. CREST AIR CONDITIONING AND HEATING, INC.
    No. 7153.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 24, 1976.

      Jesse S. Guillot, New Orleans, for plaintiff-appellant.
    Edwards, Porteous & Lee, George T. Mustakas, II, Gretna, for defendant-appel-lee.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This cause has been before this court on a prior occasion. See Cousins v. Crest Air Conditioning and Heating, Inc., 305 So.2d 926 (La.App. 4 Cir. 1974). Since we decide this case on a procedural issue we deem it unnecessary to delve into the factual dispute; however, a recitation of the egregious procedural route traveled in this case is required.

Plaintiff filed this suit against the defendant corporation in the First City Court of the City of New Orleans on November 24, 1971. Plaintiff requested that service of the petition be made on the defendant and on H. Miles, president of the defendant in Metairie, Jefferson Parish, Louisiana. The sheriff’s returns show service of the citation and petition on the defendant through H. Miles and personal service on H. Miles at 319 David Drive, Metairie, Louisiana, on December 3, 1971. On January 17, 1972, plaintiff filed an ex parte motion for change of venue to the First Parish Court, Parish of Jefferson in which he stated “that the defendant * * * has its principal place of residence in the Parish of Jefferson; * * The matter was ordered transferred “ * * * in compliance with the Code of Civil Procedure, Article 122 [121], for the transfer of actions from one Parish to another.” Pursuant to the order of court, the case was transferred to the First Parish Court for the Parish of Jefferson by the Clerk of the First City Court.

No appearance was entered by either the defendant or H. Miles and on August 10, 1972 a default judgment in the amount of $796.89 with judicial interest plus costs was rendered against defendant. Plaintiff executed on the judgment via garnishment of the defendant’s bank account in the National Bank of Commerce in Jefferson Parish and obtained a judgment against the garnishee bank on March 5, 1973. Defendant moved for a new trial on August 10, 1973. In its motion which was set for a hearing on September 26, 1976 defendant alleged that the judgment of March 5 was contrary to the law and evidence in the following particulars: “1. Insufficience [Insufficiency] of service. 2. Justice requires.” The trial court granted the new trial holding that an LSA-C.C.P. Article 122 transfer requires a contradictory motion and that notice of transfer is required. Thereafter, defendant filed a rule for the return or deposit of the funds in the registry of the court. After argument of the rule, the court ordered plaintiff to return to defendant the sum of $963.49. Plaintiff appealed from that judgment and this court ordered the case remanded for a trial on the merits. Cousins v. Crest Air Conditioning and Heating, Inc., supra. After trial, the court rendered judgment for the defendant. Plaintiff appeals from this judgment urging in this court for the first time that the new trial was improvidently granted. We agree.

There is no apparent dispute evidenced from our review of the record that defendant’s registered office, business office, or establishment is in the Parish of Jefferson and that the alleged wrongful conduct complained of occurred in the Parish of Orleans. Accordingly, proper venue for plaintiff’s suit is either in Orleans or Jefferson Parish. See LSA-C.C.P. Articles 42, 74 and 77.

It, therefore, was unnecessary for plaintiff to move for a change of venue. Though LSA-C.C.P. Article 121 is applicable to a transfer from an improper venue to a proper venue, it is obvious that the order of transfer to another proper venue could not have been granted under any change of venue authority (See LSA-C.C. P. Article 122 and 123) other than LSA-C.C.P. Article 121. It is apparent from plaintiff’s motion for change of venue that he believed that suit had been instituted in a court of improper venue. An LSA-C.C. P. Article 121 transfer does not require a contradictory motion. Accordingly, the transfer via ex parte motion was proper.

Pursuant to the court’s order, the Clerk of Court transferred the case in accordance with LSA-R.S. 13:3271, et seq. We find no due process requirement for the issuance and service of further citation when a case is transferred as here. Defendant had been served with a valid citation issued out of a court of competent jurisdiction and one of apparent proper venue. The five (5) day delay within which to file a pleading or make an appearance as required by LSA-C.C.P. Article 5002 had expired when the case was ordered transferred. Plaintiff had the right to have a default judgment rendered in the First City Court of New Orleans at that time. Though plaintiff had the case transferred via his ex parte motion, we find no imperfection in the proceedings to have barred plaintiff from having the default judgment rendered in the first Parish Court for the Parish of Jefferson. Defendant through its own negligence and/or inattention permitted a default judgment to he confirmed against it by failing to respond to the petition properly served upon it.

An examination of the pleadings filed in the trial court seeking a new trial do not bring the defendant within the rules for which the law provides for the granting of a new trial. See LSA-C.C.P. Article 1971, et seq. Furthermore, defendant’s application states no facts legally sufficient to exonerate it from negligence for failing to make an appearance in either the transfer- or or transferee court.

Even if the issues raised by defendant in its application for a new trial had merit, which we have concluded is lacking, defendant was confronted with an insuperable obstacle, by reason of which the points hereinabove discussed assume minor importance. Defendant’s belated application for a new trial could not give birth to his contentions had they been meritorious. Personal service having been made upon the defendant through its president, notice of the signing of the default judgment was not required. Therefore, defendant had three days, exclusive of holidays, within which to apply for a new trial. LSA-C.C.P. Article 1974. The trial court was without authority to grant a new trial, after the delay fixed by LSA-C.C.P. Article 1974 had expired. See Rodrigue v. Ziifle, 288 So.2d 630 (La.1974).

For the foregoing reasons, the trial court judgment granting a new trial is vacated and the judgment appealed from is annulled, vacated and set aside and it is now ordered, adjudged and decreed that the judgment of the First Parish Court for the Parish of Jefferson rendered on August 10, 1972 be and is hereby reinstated and is the judgment of this court. Defendant is to pay all costs of these proceedings.

REVERSED AND REMANDED.

BOUTALL, J,, concurred in result.

BOUTALL, Judge

(concurring in result).

The same procedural issues which plagued this court on the prior appeal have returned: What effect or validity should be granted to the various judgments rendered because of failure to timely ask for new trial or appeal? That appeal was only an appeal from a judgment on a motion to return the money seized. The majority of the court felt that the issues now deemed to be determinative of the case were not before us directly at that time, the appeal time on both judgments had passed, and any judgment rendered in connection therewith would be outside the scope of the appeal. The matter is now before us on appeal from the merits.

As I see the problem now presented, there was a default judgment taken on August 10, 1972. After the time for appeal had elapsed, a writ of fieri facias and garnishment proceedings were had in which the judgment creditor seized and was paid the amount of his judgment from the defendant’s bank account. The garnishment judgment was rendered on March 5, 1973. It was not until August 10, 1973 that the defendant filed a motion for a new trial asking that the default judgment be “set aside and annulled”. Contradictory proceedings were held and on May 16, 1974 the motion for a new trial was granted and the default judgment was “rescinded, set aside and vacated”. As the majority in this appeal points out, the trial court had no authority to grant a new trial and the judgment is erroneous. C.C.P. Art. 1974; Rodrigue v. Ziifle, 288 So.2d 630 (La., 1974).

What causes the complications in this suit is that no appeal nor application for writs was taken from that erroneous judgment setting aside the default judgment, and it was not until a subsequent rule was had ordering the transfer of the money from the judgment creditor back to the judgment debtor that an appeal was taken, and only on that particular point. Hence the question which presents itself is whether the original judgment of default should now be accorded validity since it became final and definitive or whether the judgment setting the default judgment aside, which also became final and definitive, has now superseded the default judgment as the law of the case. See for example: Frank’s Casing Crew & Rental Tools, Inc. v. Carthay Land Co., 281 So.2d 894 (La.App. 1973); Donald v. Glazer, 253 La. 811, 220 So.2d 84 (1969).

To express it differently, if the issue is approached strictly from the standpoint of the law of the case, it would appear that the final judgment must prevail. On the other hand, it appears that there must be some point at which litigation ceases and a judgment becomes unassailable, at least by the parties involved in the litigation. Approaching the issue from a standpoint of finalty of judgments, it would appear that the default judgment is unassailable and must prevail, and that all subsequent proceedings were null.

The majority opinion herein would hold that due to the passage of time beyond that at which new trial was permitted, the trial court had no authority to render a new trial. Hence the first judgment was good. But it appears to me that that same argument can be applied to the second judgment which vacated the first. In either situation, relying simply on passage of time, one is applying in effect simply a restatement of the law of the case, that is, a judgment which may be erroneous, but has not been attacked timely, becomes the law as between the parties. To me the basic fact which determines the resolution of the issues herein is the execution of the first judgment. Had the default judgment not been executed I would be of the opinion that the second judgment is the controlling judgment and would have joined with the dissenting judge in the original appeal. However, I am of the opinion that the execution of the judgment, with the time lapse of five months after execution, deprived the court of any jurisdiction over the subject matter that it had. The subsequent proceedings granting the motion for a new trial and vacating the judgment were absolutely null. By the time the motion for new trial was filed the case itself had been completely concluded; judgment had been obtained and was final; the execution took place, and the money had been collected by the judgment creditor; plaintiff was entitled to and did exercise his complete property rights in the judgment. There was nothing left before the court for it to exercise jurisdiction over.

I am particularly persuaded towards this view by those articles of the Code of Civil Procedure dealing with the action of nullity, Articles 2001, et seq. Presuming that the default judgment could have been attacked on one of the grounds enumerated in Article 2002(2) “ * * * against whom a valid judgment by default has not been taken”, and applying the penalty of loss of action provided in Article 2003, the judgment could not be annulled by a defendant “who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement”. Thus not only had new trial and appeal time passed, but the judgment could not even be attacked by a suit for nullity of judgment. See for example Guidry v. Poirot, 206 So.2d 126, (La.App.1967). At the same time, I point out that the record shows resistance to enforcement of the judgment against plaintiff.

Being of the opinion that the proceedings subsequent to the execution of the default judgment were absolutely null and that the default judgment itself was not absolutely null, I concur in the result of the majority opinion.


author: MORIAL, Judge.

text:
    Lillie Mae JAMES v. JAKE TUSA’S RESTAURANT AND BAR and the Travelers Insurance Company.
    No. 7583.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Windhorst, Heisler, de Laup, Wysocki & Klein, E. Gordon Schaefer, Jr., New Orleans, for plaintiff-appellant.
    James J. Morse, Julian G. Baudier, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Lillie Mae James, appeals from a district court judgment awarding her workmen’s compensation benefits in the amount of $12.50 per week for 200 weeks.

On July 20, 1972 plaintiff injured her wrist while in the course and scope of her employment with Jake Tusa’s Restaurant. Travelers Insurance Company, Tusa’s workmen’s compensation insurer, has paid $97.-00 in medical payments and 49 weeks of workmen’s compensation benefits at the rate of $41.60 per week for a total of $2,135.40.

Plaintiff alleges that as a result of her work related accident she is now totally and permanently disabled and entitled to 500 weeks of benefits at the rate of $41.60 per week, plus a credit for benefits already paid. The trial court found plaintiff to have suffered only partial permanent disability and awarded her the sum of $12.50 per week for 200 weeks, less a credit of $2,038.40 for compensation already paid. Plaintiff appeals. Defendants have answered the appeal seeking a reduction in the judgment from 200 weeks to 150 weeks at $12.50 per week subject to a credit for compensation already paid. We amend and affirm.

The sole question before us is whether plaintiff is totally and permanently disabled under the workmen’s compensation statute. Plaintiff’s counsel refers to Mrs. James an an unskilled worker. As such, her injury may entitle her to a determination of total and permanent disability if the injury has substantially decreased her ability to compete with ablebodied workers in the general labor market. Bryant v. Travelers Insurance Co., 314 So.2d 379 (La.App. 4 Cir. 1975). In addition, plaintiff will be considered totally and permanently disabled if the evidence establishes that she will incur substantial pain in the performance of her employment.

Dr. William Roy, a general surgeon, was the only witness to testify on behalf of defendant. Dr. Roy first saw plaintiff on November 3, 1972 and at that time was informed that she had fallen on July 20, 1972 and injured her right wrist. She told him that after the fall she had been taken to Charity Hospital where the wrist was reduced four times and a cast was applied which remained on for eight weeks. Dr. Roy performed X-rays which revealed a fracture of the lower end of the radius occurring approximately four months prior to his examination resulting in some limitation of motion. He encouraged the patient to use the wrist daily to its maximum capacity and expected her range of motion to increase and for her to eventually have a painless wrist. He estimated, however, that she would have about a 10% permanent partial loss of function of the wrist. He recommended that the patient start work immediately so that bone atrophy would not set in. He saw the patient one more time on July 5, 1973. This examination revealed a greatly increased range of motion and X-rays showed a complete healing of the fracture with some dorsal tilting and some shortening of the radial fragments. The doctor felt that because of this tilt she had a legitimate 10% disability of the forearm but believed she could return to her regular work — regardless of the extent of her duties — without undue discomfort. Dr. Roy further stated that he could not reconcile the amount of improvement he found on this examination with the plaintiff’s complaint that “she was unable to use her right and and could not even hold a glass of water in it.” He also felt that the patient’s complaints of swelling in the wrist each day after working were unusual a year after a fracture (but not impossible) but that if he had been called and told about the swelling he would not have advised soaking in Epsom salt (as she had done) but would have asked her to come back and see him. He admitted that although at the time of his examination he was not told that the plaintiff’s duties before the accident included those of a cook, he would still have told her to return to work in her original capacity because her range of motion had increased to a point where he felt she could do any type of work including heavy lifting.

Testimony elicited on behalf of plaintiff consisted of several lay witnesses and an employment expert. Plaintiff’s cousin, Mrs. Mildred Hodges, testified that plaintiff soaks her hand every day after work to decrease the swelling and relieve the pain. She stated that before the accident the hand was normal but now plaintiff’s hand is crooked and she drops things.

Mrs. I. Robinson testified that although she did not know plaintiff before the accident she now sees plaintiff two or three times a month and has observed swelling-in her wrist. She stated that she has also seen plaintiff drop things and has been told that plaintiff cannot lift with her right hand because whatever weight comes into it causes her pain.

Mrs. Lorraine Dowell, a co-worker of plaintiff before she sustained her injury, testified that at that time plaintiff was able to perform all the functions of her job and even assisted others in the performance of their duties. She stated that now plaintiff is performing her job differently in that she or a newly hired porter now does most of the heavy lifting and plaintiff only lifts small pots. The witness stated that she has also heard plaintiff complain of pain and has seen her wrist swell.

Lillian Lee Des Lattes, qualified as an expert in the field of employment relations and the employment market, testified that after interviewing and taking a history from plaintiff she did not believe plaintiff would be employed by another employer because that employer would feel that he might be responsible for any future problems. She admitted, however, that defendant did not come to her seeking a job and that she had never actually spoken to a restaurant owner about employing a cook with a 10% disability of the wrist.

Finally, plaintiff herself testified that since she returned to her former job in December of 1974 she can no longer lift heavy pots, her wrist swells and she suffers pain. She denied that Dr. Roy had ever instructed her to return to work. She also explained that even though the pain is great she did not return to see Dr. Roy because she had suffered so much during the initial fracture that she could not bear the thought of him hurting her by possibly having to fracture the wrist again to reset it. She stated that a porter now does many of the jobs she once performed at Tusa’s and that her children now do all the housework.

After listening to all of the witnesses, the trial judge concluded that although plaintiff was not free of pain, she was not suffering substantial pain as required for total and permanent disability under the workmen’s compensation statute. He also concluded that plaintiff would not be noncompetitive in the employment market. He discounted the testimony of Ms. Des Lattes stating he was not convinced that she was knowledgeable enough to ascertain purely from what she was told by plaintiff that she would be non-competitive in the labor market.

We believe that the trial judge applied the proper standards in his determination of disability and the basis of his judgment is supported by the record taken as a whole. Plaintiff now works in the same job and in the same capacity as she did before the accident. There is nothing in the record to indicate that the porter who now assists her in her job was hired because of her present inability to perform any of her prior functions. Plaintiff’s complaints of pain and swelling, while supported by her lay witnesses, are totally unsubstantiated by the medical evidence. It is the duty of the trial judge to weigh all of the evidence, both lay and medical, in making a determination of disability. Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (1975). The trial judge obviously concluded that the medical testimony outweighed the lay testimony. After careful review of the record we cannot say that this conclusion is manifestly erroneous.

Having concluded that plaintiff was not totally and permanently disabled, the trial judge awarded her compensation in the amount of $12.50 per week for 200 weeks under the partial disability section of LSA-R.S. 23:1221. Plaintiff’s disability relates to her wrist and forearm, As such, plaintiff is entitled to an award based upon loss of use of a hand. Bryant, supra. LSA-R.S. 23:1221 4(e) specifies compensation for ISO weeks for loss of a hand. The judgment of the trial court must, therefore, be amended to conform with this schedule.

Accordingly, the judgment of the trial court awarding plaintiff the sum of $12.50 for 200 weeks subject to credit for compensation previously paid is hereby amended and it is now ordered, adjudged and decreed that there be judgment herein awarding the plaintiff the sum of $12.50 per week for 150 weeks subject to a credit for compensation previously paid. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiff.

AMENDED AND AFFIRMED.


text:
    Joseph MARTIN v. Sidney RICHARDSON, Sr., et al.
    No. 7414.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Carl & Roussel, William S. Vincent, Jr., New Orleans, for plaintiff-appellant.
    Laurence E. Larmann, New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, James A. Martin, appeals from a district court judgment maintaining defendants’ plea of contributory negligence and dismissing his suit.

On December 22, 1973 plaintiff was injured in a vehicular collision with defendant, Mrs. Julia Richardson, at the intersection of Jackson Avenue and South Galvez Street in New Orleans. Plaintiff subsequently brought suit against the owner of the vehicle, Sidney Richardson, the driver, Mrs. Richardson, and their insurer, Allstate Insurance Company. Defendants answered alleging contributory negligence on the part of plaintiff. After trial on the merits, the trial court rendered judgment in favor of defendants. Plaintiff appeals. We affirm.

The accident occurred at approximately 8:00 P.M. at an intersection controlled by a 4-way stop sign. At the time of the accident, plaintiff was traveling south on Jackson Avenue and Mrs. Richardson was proceeding in an easterly direction on South Galvez Street. Mrs. Richardson testified that she arrived at her stop sign prior to plaintiff. She further testified that while stopped at the stop sign, plaintiff’s vehicle slowed as if intending to stop, and when she began to cross the intersection plaintiff speeded up in an attempt to beat her across and the collision resulted.

Plaintiff on the other hand, testified that he reached his stop sign first. He further testified that while he was stopped Mrs. Richardson pulled up to her stop sign and stopped, then rolled slowly forward and stopped again. Plaintiff stated that he then proceeded to cross the intersection and while in the process Mrs. Richardson started across. He stated he hit his horn, tried to brake and then the collision occurred.

The only other person to testify was a purported eye witness to the accident, John Knox. Mr. Knox testified that when he first observed the two cars they were both stopped at the intersection. He stated that plaintiff pulled off first and had. traveled about 20 feet when the other car pulled out about 5 to 8 feet and hit him. Mr. Knox, however, did not advise the police that he had witnessed the accident and although he admitted knowing plaintiff at the time of the accident and was only IS feet away from him, he did not stop and offer assistance.

After listening to all the witnesses, the trial judge discounted Mr. Knox’s testimony and concluded that the negligence of both drivers was the proximate cause of the accident. He found that both parties were required to stop and then proceed when it was safe to do so and that both parties did only one half of what they were obliged to do.

We believe that the judgment of the trial court is fully supported by the record. Plaintiff and Mrs. Richardson each claim the other caused the accident. Plaintiff presented the testimony of Knox in an effort to prove his case by a preponderance of the evidence. The trial judge found Knox’s testimony not to be credible stating: Determinations of credibility of witnesses, being within the province of the trial judge, are not to be disturbed in the absence of manifest error. We find no such error here.

“* * * Knox knew and was a friend of the plaintiff. He was allegedly an eyewitness to the accident, but he did not remain at the scene to identify himself to the investigating officers or to anyone else. He volunteered to the plaintiff his help and testimony and identified himself as having been an eyewitness to this accident some six months later when he and plaintiff happened to be talking about it. This Knox is allegedly a man who has witnessed within the last two years some 100 such accidents, both in New Orleans and out of the city. He is a professional truck driver and ought to know better than to be on the scene of an accident without identifying himself as an eyewitness to either the parties involved or the police.”

Accordingly, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.


author: SCHOTT, Judge.

text:
    ERNEST JOUBERT COMPANY v. Ellyna TATUM.
    No. 7657.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Philip R. Riegel, Jr., and Sydney J. Parlongue, New Orleans, for plaintiff-ap-pellee.
    H. Cliff Remm, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

The tenant has appealed from a judgment making absolute plaintiff’s rule for possession of premises.

The record contains a copy of a notice to vacate the premises at the expiration of the rental period on January 24, purportedly served by plaintiff’s agent on January 5 by the method “tacked on door.” The rule for possession was filed on January 29 and was tried on February 5. The tenant answered the rule to the effect that the service of process was defective since the factual conditions precedent for the landlord to avail himself of the tacking provisions of LSA-C.C.P. Art. 4703 were not present and that this article is unconstitutional since its provisions violate a tenant’s due process. Other factual defenses were also alleged which need not be detailed herein.

The judgment of eviction recites that an agent for the plaintiff and the defendant were present at the trial of the rule and that the court ordered the eviction “after hearing the law and evidence.” There was no transcript taken of the testimony, and there is no narrative of facts pursuant to C.C.P. Art. 2131.

Art. 4703 authorizes the tacking procedure “[i]f the premises are abandoned or closed, or if the whereabouts of the lessee or occupant is unknown .” Appellant would have us reverse the judgment on the theory that it is now appellee’s burden to show on the face of the record that these conditions existed entitling him to utilize the tacking procedure. We disagree. These are factual questions which we must assume were testified to at trial by plaintiff’s agent, who was the same agent as the one who tacked the notice on the door of the premises. Since there is no transcript or narrative of facts appellant is in the same position as was the appellant in Landry v. Landry, 323 So.2d 507 (La.App.4th Cir. 1975), in which the appeal was dismissed.

As to the constitutional attack on Art. 4703 appellant has cited no relevant authority for the proposition that the tacking alternative is constitutionally repugnant, and we cannot assume such to be the case. This is a special procedure involving the possession of specific premises which is only authorized under conditions where it seems to be the only practical or workable method of effecting service. By the procedure, the tenant is not subjected personally to the jurisdiction of the court, but only his right to possession of those premises is involved.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Herman PIERRE et ux. v. Beverly D. LANDRY and Fireman’s Fund Insurance Company.
    No. 7523.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Granted Sept. 24, 1976.

      Vial, Vial & Lemmon (Leon C. Vial, III), Hahnville, for plaintiffs-appellees.
    Dillon & Williams (Willaim S. Marshall, Jr.), New Orleans, for defendant-appellant (Fireman’s Fund Insurance Co.).
    Daniel E. Becnel, Jr., Reserve, for defendants-appellants (Bevelyn D. Landry and Fireman’s Fund Insurance Co.).
    Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

From a judgment in favor of Mr. and Mrs. Herman Pierre for damages and medical expenses incurred by them in connection with injuries sustained by Mrs. Pierre, defendants Fireman’s Fund Insurance Company and Bevelyn D. Landry, have appealed. Bevelyn D. Landry, the alleged tortfeasor, was uninsured and Fireman’s Fund was the uninsured motorist carrier of the plaintiffs. The judgment appealed from was also in favor of Fireman’s Fund on its third party call for indemnification against Bevelyn D. Landry. The trial judge made the following findings of fact:

“At about 7:50 a. m. on March 5, 1973, plaintiff was walking in a downstream direction on the sidewalk adjacent to La. 18 at Lucy, Louisiana, in this parish. It had rained during the night and morning and was still drizzling. She found the sidewalk covered with water so she retraced her steps, found a bridge and went onto La. 18 where shortly thereafter she was struck by defendant Landry’s vehicle.
“Accepting the testimony of Landry and Cambre as to the facts, we find that defendant Landry was traveling in a downstream direction with no impairment of vision and at a speed of 30 to 40 miles per hour. She was negotiating a slight S-curve that did not obstruct vision in the downstream direction when she saw plaintiff in the middle of the road some 40 feet ahead of her vehicle.
“Plaintiff attempted to get off the roadway and defendant Landry applied her brakes. The car skidded on the wet road and struck plaintiff before she could get off the roadway.
“Albeit the flooded sidewalk forced plaintiff to move onto the roadway, she was negligent in placing herself in such a perilous position. Equally negligent was defendant Landry in failing to maintain such a lookout that, with good visibility ahead and no obstacles to such visibility, she failed to see plaintiff in the roadway until she was 40 feet away from plaintiff.
“Plaintiff attempted to extricate herself from the perilous position to no avail. However, defendant Landry, had she maintained a proper lookout, could and should have seen the dangerous position of plaintiff in sufficient time and within sufficient distance to have avoided striking plaintiff. Defendant Landry had the last clear chance to avert the accident.”

Plaintiffs have the burden of proof that defendant was negligent. The trial judge’s affirmative determination in this regard consisted of a finding that she failed to see what she should have seen, namely, the plaintiff in the highway ahead of her in sufficient time and at a sufficient distance to avoid the accident. Because we do not find evidence in the record which supports this finding, we reverse.

Plaintiff’s testimony was that she at no time went on the highway, but at all times was walking on the shoulder of the road. Mrs. Cambre, who was traveling in her own automobile about three car lengths behind defendant, testified that plaintiff appeared to be crossing the road when she first saw plaintiff at approximately the time when defendant first put on her brakes and that plaintiff then turned around and attempted to run back across the road to avoid being struck by defendant. The evidence does not show that plaintiff was on the road for any appreciable amount of time before she was struck, but, on the contrary, indicates with equal probability that she suddenly entered the road in the face of defendant’s oncoming vehicle.

This was a 60 mile per hour speed zone so that defendant was traveling well within the speed limit when she first noticed plaintiff in the road ahead of her.

The judgment appealed from is reversed and there is judgment in favor of defendants, Bevelyn D. Landry and Fireman’s Fund Insurance Company, dismissing the claim of plaintiffs at their cost. The third party demand of Fireman’s Fund Insurance Company is likewise dismissed at plaintiffs’ cost.

REVERSED AND RENDERED.


text:
    Gerald Jerome VERDIN v. Gayle Marie VERDIN.
    No. 7330.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellee.
    Before GULOTTA, SCHOTT and P. C. ST. AMANT, Judge Assigned.
   SCHOTT, Judge.

This is an appeal by a husband from a judgment condemning him to pay $650 per month alimony pendente lite and child support.

In January, 1975, a judgment of separation from bed and board was taken by the husband and he was ordered to pay child support in the amount of $60 per week for two minor children, ages 7 and 4. He was also to pay the mortgage notes of $120 per month on the family home to be occupied by the wife and children. Shortly thereafter, the wife filed a rule to increase alimony and child support and the husband filed a rule to decrease.

The evidence produced by the wife showed that the husband earned as a welder with various employers in 1973 $10,741 and in 1974 $17,679. The wife demonstrated needs of about $1,000 per month for herself and the children.

The husband offered evidence to show that between February 11 and March 25, 1975, he earned only $1400. He testified that he needs $225 per month for rent and food alone. He argues that the amount of alimony and support awarded to his wife exceeds his total income.

The trial judge based his decision on the 1974 income of $17,000, and the record does not demonstrate this to be erroneous. The husband admitted that he worked for other employers during January, 1975, and yet he produced no records of income. He explained the reduction in his income from 1974 by the fact that his new employer, for whom he worked between February and March, did not provide an opportunity for overtime work.

The record supports the wife’s needs of $650 per month for herself and her children, and apparently the trial judge was convinced that the husband could earn an amount corresponding with his 1974 income but voluntarily failed to do so. We find no basis for disturbing his award. The judgment is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Mrs. Joan M. Douglass, wife of Henry STEADMAN, Jr. v. Henry STEADMAN, Jr.
    No. 7393.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Dobin Friedman, New Orleans, for plaintiff-appellee.
    Roccaforte & Rousselle, Leo W. Rous-' selle, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendant, the divorced husband, appeals from a judgment ordering partition by licitation of the community property. It is Steadman’s contention, on appeal, that the trial judge erred: 1) in ordering all of the community assets to be placed in possession of the auctioneer when the petition seeks only partition of the inventoried items; 2) in failing to order Mrs. Stead-man to surrender all of the inventoried movables in her possession; 3) in signing a judgment ordering surrender of community assets which was at variance with oral instructions ordering surrender of inventoried assets; 4) and, finally, in ordering defendant to surrender possession of community property in his possession within five days of judgment, while ordering Mrs. Steadman to surrender possession of an automobile within 10 days of the auction.

The community consists of the family home, household furnishings, a family automobile and a dog. Admitted in defendant’s brief is the fact that the real property cannot be divided in kind. According to the inventory, the listed movables and real property constitute all of the community of acquets and gains existing between the parties. Mrs. Steadman testified that the inventoried assets and community assets are one and the same. Accordingly, we find nothing in the record to support defendant’s contention that the community contains any other assets than those listed in the inventory.

Although the written judgment ordered the parties to deliver to the auctioneer all movables listed in the inventory, as well as all of the community assets, there exists nothing in the record, other than defense counsel’s assertion, that additional community assets, not mentioned in the inventory, existed. The trial judge’s oral reasons for judgment clearly indicated that his order was to apply to all movable property inventoried, and that any subsequently discovered community property could be settled in a separate lawsuit.

Partition proceedings are governed by LSA-C.C.P. art. 4605 which provides:

Art. 4605. Preference; appointment of notary; discretion of court
“A partition proceeding shall be tried with preference over other ordinary proceedings.
“After the trial of the proceeding, if the court finds that the plaintiff is entitled to a partition of the property, the court shall appoint a notary to make the partition in accordance with law.
“Except as otherwise provided in Article 4606, the court has discretion to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties.”

and LSA-C.C.P. art. 4606 which states:

Art. 4606. Partition in kind
“Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind.”

These articles provide the trial judge with discretion to direct the manner and conditions affecting the partition. In the instant case, the trial judge properly ordered a partition by licitation and surrender of the inventoried community assets. We do not quarrel with the order directing the wife to surrender the automobile 10 days prior to the date of auction and to surrender the dog on the date of the auction. We are not in agreement, however, with the further order directing the movable inventoried property in the possession of the husband to be delivered to the auctioneer within five days after the date of the judgment. We are mindful that in answer to the court’s questions, Steadman was evasive with respect to making the movable property available to prospective purchasers and that Steadman appeared to be less than cooperative. Nevertheless, we fail to find it necessary to order the surrender of the movable property in Steadman’s possession earlier than 10 days prior to the auction.

Accordingly, defendant is ordered to deliver to the auctioneer all of the movables in his possession that are listed in the inventory not later than 10 days prior to the auction date to be set by the trial judge. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.


author: BOUTALL, Judge.

text:
    Anthony AMBROSIA v. CHEROKEE INSURANCE COMPANY and Richard J. Garrett.
    No. 7407.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 8, 1976.
    Robert J. Stamps, New Orleans, for plaintiff-appellant, Anthony Ambrosia.
    Malcolm B. Robinson, Jr., Metairie, for defendants-appellees, Cherokee Ins. Co. and Richard D. Garrett.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Plaintiff, Anthony Ambrosia, filed suit against his landlord and his landlord’s insurer for personal injuries received in a fall on the leased premises. The trial court found in favor of the landlord, holding him free from fault and dismissing plaintiff’s suit. Plaintiff now appeals and we affirm.

The facts show that Ambrosia leased one half of a “shotgun” house from the Gar-retts. The lease was oral and on a month to month basis. Ambrosia was moving out of the house when the accident occurred. He and a friend were taking the last of his possessions from the house on a cart. A fan on the cart started to fall and as Ambrosia stepped back to avoid the fan his foot and leg went through the flooring. Ambrosia injured his back and leg in the fall.

Ambrosia states that he did not know of this defect in the floorboards because the floor was covered with linoleum. The weak spot was close to the wall and Ambrosia had kept a trunk over that spot. The evidence clearly shows that the Gar-retts had no knowledge of the defective floor because Ambrosia had refused to allow then to inspect the house. On at least three occasions the Garretts had sent an inspector to the house to check for defects and needed repairs. On each occasion Ambrosia had turned the man away with various excuses. He often told the inspector that if anything was wrong with the house he would fix it himself.

This case falls within the purview of RCC Article 269S. The trial court dismissed Ambrosia’s claim on the grounds that his refusal to allow inspections constituted “fault” within the meaning of the article.

RCC Article 2695 imposes strict liability upon a lessor for any injuries to the lessee caused by defects in the premises. However, the lessor can exonerate himself if he shows that the defect arose through the negligence of the lessee. Pollard v. Roberts, 306 So.2d 801 (La.App. 2nd Cir. 1975).

Ambrosia attempts to show that none of the recognized defenses to a strict liability claim apply to the facts in this case. The case of Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971) has struck out the defense of contributory negligence. The facts do not support a defense of assumption of the risk since it is uncontested that neither lessor nor lessee knew of the existence of the defective floorboards. There were no other affirmative defenses pleaded.

Defendants defense consists of the plea that Ambrosia willfully and actively kept then from ascertaining if the building was defective by refusing to allow inspections. They assert that this action constitutes fault on Ambrosia’s part barring his recovery.

The facts are plain that Ambrosia did keep defendants from inspecting their building. The attempts at inspection and repair were not mere formalities because the record shows that defendants inspected and repaired the other half of the shotgun house and even repaired Ambrosia’s roof by reaching it from the other side.

We hold, as did the trial court, that Ambrosia’s actions free defendants from liability. It is not possible under the facts of this case to pigeonhole or name this defense. The Civil Code article requires only that there be fault and we hold that there was fault on the part of the lessee sufficient to bar his recovery.

Ambrosia argues that there is no causal connection between his fault and the defect. While it is true that his actions of not allowing inspections did not cause the floor to decay, his actions did cause the defect to go undetected and unremedied.

As the trial court stated in its reasons for judgment, “While it (Ambrosia’s fault) may not be the physical cause of the deterioration, it is a legal cause since it effectively prevented the landlord from curing the defect.”

For the above reasons the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.

      . The pictures placed in evidence by Ambrosia do not show linoleum to be covering the hole area, but only covering alongside the broken flood boards. He also testified that he noticed the bad condition of the floor when he removed the trunk.

      . Ambrosia testified that he could remember three incidents involving the inspector. Mrs. Garrett and the inspector testified that there were at least six such incidents and probably more.

      .Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in ease it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.


author: LEMMON, Judge.

text:
    August RICHARDS and Marvel Joseph v. Thomas GETTYS.
    No. 7478.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Orlando G. Bendana, New Orleans, for plaintiffs-appellánts.
    Hammett, Leake, Hammett, Hayne & Hulse, Harry D. Hoskins, III, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

Plaintiffs’ appeal questions a judgment which found them liable for a two-car collision. Defendant was the driver of one of the vehicles, while plaintiffs were the driver of the second vehicle and the owner (who was also a passenger at the-time of the collision).

Defendant’s version was: He was driving in the leftmost of two eastbound lanes of a divided roadway at a speed of 40 to 45 miles per hour, 55 being the posted limit. As he approached and began to pass two cars traveling in the right lane, the first of the two cars suddenly and without warning moved into the left lane, about one car length in front of him. He blew his horn and applied his brakes, but did not have sufficient time to stop or otherwise avoid a collision. He could not swerve to the right because of the presence of the second car or to the left because of a dividing barrier.

Defendant’s passenger completely corroborated this version of the occurrence. There was no physical evidence to support or contradict this depiction.

Plaintiffs’ version was: Plaintiff driver was traveling east in the left lane at 30 to 40 miles per hour when she was struck from the rear. She had not changed lanes prior to the collision.

The case presents absolutely conflicting factual versions of the occurrence. After reviewing the record, we find no error in the trial judge’s acceptance of defendant’s version that plaintiff driver changed lanes when it was unsafe to do so and rejection of plaintiffs’ version that the accident was a simple rear end collision.

Plaintiffs point out, however, that in a subsequent trial in a different parish of a suit arising from the same accident, defendant was found to be concurrently negligent. The evidence, upon which the judgment in the later case was based, forms no parts of the record before us for review, and the liability finding in the other case is immaterial to our review of the evidence in the present case.

In support of a similar argument plaintiffs attached to their brief in this court a deposition taken in the other case (on May 2, 1974) and argue that defendant’s trial testimony in the present case (on April 2, 1975) was inconsistent with the deposition testimony. While the deposition (taken one month after this trial) was not available on the date of trial and thus could not be used to impeach defendant’s trial testimony, there was no showing that plaintiffs were unable to obtain defendant’s deposition prior to this trial. Furthermore, even treating plaintiffs’ argument as a motion for remand based on the deposition being newly discovered evidence, we find no inconsistencies of sufficient significance to warrant a remand and retrial for another credibility determination in the light of the deposition statements.

Finally, plaintiff owner argues that he was improperly cast in judgment on defendant’s reconventional demand, since the owner of an automobile is not vicariously liable for the negligence of the driver. On the other hand, defendant argues that plaintiff owner was independently negligent in allowing the driver to operate his car while in an intoxicated condition.

The owner of a vehicle is not vicariously liable for the torts of the driver. Moreover, the record in this case does not support a finding that the driver was intoxicated or otherwise incapable of driving safely, the sole evidence being defendant’s testimony that the occupants of the other car “looked like . . . they had a few drinks . . . .”

Accordingly, the judgment of the trial court is reversed insofar as it holds plaintiff August Richards liable on the incidental demands. In all other respects, the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART.


text:
    Linda O’Brien, wife of/and Michael O’BRIEN v. Louis J. BECKER, Jr.
    No. 7397.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Marvin C. Grodsky, New Orleans, for plaintiffs-appellees.
    Schroeder, Kuntz & Miranne (Michael O. Miranne), New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   LEMMON, Judge.

This is a suit for the return of a lessee’s deposit, filed pursuant to R.S. 9:3251 et seq. After trial on the merits judgment was rendered awarding return of the deposit, damages and attorney’s fees. Defendant lessor has appealed.

Plaintiffs were the first tenants to occupy this particular apartment after the building was constructed in 1970. They furnished a deposit of $50.00 to secure the performance of the verbal lease agreement.

Plaintiffs moved from the apartment on November 12, 1974 and two weeks later made written demand for the return of the security deposit. By letter dated December 9, 1974, defendant refused to return the deposit, asserting that plaintiffs, “did leave considerable damage” without specifying what the alleged damages were. Attached to the letter were receipts (totaling $173.15) for items “procured for the purpose of general cleaning, painting, and repairing” the premises.

This suit was filed in March, 1975. In answering interrogatories attached to the petition, defendant listed the damages specifically as a hole in the bedroom wall, cigarette burns in the living room carpet, mercurochrome stains on the drapes, and torn floor tiles in the kitchen.

R.S. 9:3251, requiring a lessor to return any deposit to the lessee within one month of the termination of the lease, contains an exception which allows the lessor to retain all or part of the deposit “as is reasonably necessary ... to remedy unreasonable wear to the premises”, but requires the lessor in case of retention to forward an itemized statement accounting for the retained proceeds and giving the reason therefor.

R.S. 9:3252 imposes a penalty upon the lessor who willfully fails to comply with R.S. 9:3251 and further declares that “(f)ailure to remit within thirty days after written demand for a refund shall constitute willful failure.”

One reason for requiring itemization is to prevent a lessor from arbitrarily withholding the deposit. In the present case defendant did answer the written demand timely, but did not return the deposit or furnish an itemized statement with reasons. The receipts attached to defendant’s letter were primarily for painting materials, which cannot reasonably be considered as “unusual wear” after over four years of occupancy. Thus, defendant’s reasons for retaining the deposit were not explicated (at least as to items of unusual wear) until the interrogatories were answered, four months after the formal demand for the deposit. And, even then, there was no itemized accounting.

From the facts and circumstances of this case, we conclude that defendant willfully failed to comply with R.S. 9:3251. Since R.S. 9:3252 was designed to prevent the exact type of behavior which occurred in this case, we further conclude that the penalty was properly imposed.

In connection with plaintiff’s demand for return of the deposit, defendant attempted to prove the four items of damages listed in the answers to interrogatories. The record established that the hole in the wall had been caused by a tenant in the adjoining apartment and had never been repaired by the previous owner. This damage was therefore not attributable to plaintiffs, a fact that could have been determined without litigation if defendant had furnished the information required by the statute.

As to the burns in the carpet, the trial judge apparently accepted the testimony of plaintiffs and their friend who vacuumed the carpet the day of the move that there were no burns at that time. Defendant’s son examined the premises the next night and did not observe any defects. The first witness who observed the burns did so after painters worked in the vacant apartment following plaintiffs’ move. We find no manifest error in the denial of this claim of damages.

Plaintiff wife admitted she saw mercurochrome stains on the drapes as they were cleaning the room after the sofa had been moved. Defendant testified that the stains could not be removed, but produced no evidence as to the value of the drapes, stating only that they were replaced at a cost of $20.00. Even this evidence as to replacement was contradicted somewhat by the new tenant’s testimony that she was offered the drapes after cleaning, but in fact used her own drapes. Considering the length of plaintiffs’ occupancy and the lack of evidence as to the extent of the stains or the value of the drapes, we decline to disturb the trial judge’s denial of this claim of damages.

Finally, the damage to four floor tiles in the kitchen (which consisted of marks where a refrigerator had been located) was not shown to be the result of unreasonable wear.

We conclude that plaintiffs are entitled to a return of their deposit.

As to attorney’s fees, R.S. 9:3253 provides :

“In an action brought under R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to the prevailing party.”

After reviewing the record, we find no abuse of the trial judge’s discretion in his award to plaintiffs of $100.00 for attorney’s fees. Furthermore, responding to plaintiffs’ answer to the appeal, we increase the attorney’s fees by $300.00 for legal services in connection with the appeal.

Accordingly, the judgment is amended to increase the amount of attorney’s fees to $400.00. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . R.S. 9:3251 refers to the period within one month after termination of the lease, while R.S. 9:3252 refers to the period within thirty days after written demand for a refund.
      Apparently, the legislature intended that the penalty not be imposed upon a lessor who unknowingly fails to comply with R.S. 9:3251 when there has been no written demand for a refund.

      . Defendant bought the building five months before plaintiffs moved. He had inspected the building at the time of the purchase.


author: LANDRY, Judge.

text:
    L.E.C., I.NC, v. J. Charles COLLINS, Jr., et al.
    No. 10601.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    On Denial of Rehearing April 12, 1976.

      J. Charles Collins, in pro per.
    William Mysing, Covington, for appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant, J. Charles Collins, Jr. (Appellant) appeals a judgment ordering amendment and modification of a notice of lis pendens filed by Appellant against plaintiff herein, L.E.C., Inc., and other parties (Appellee), in a related action by Appellant contesting title to streets in, and the relocation of the entrance to, a residential subdivision in which Appellant purchased a building site from Appellee’s predecessor in title. We amend the judgment to revise the modification ordered by the trial court.

The fundamental issue presented herein is whether Appellant’s notice of lis pendens applies to property which is not in dispute in Appellant’s related action. Resolution of this sole issue must be made in the light of two legal questions, neither of which can be decided herein. The first is whether the developer of a subdivision may change the location of a subdivision entrance after having sold lots therein based on a plan showing a different entrance. Second, whether certain legends on recorded subdivision maps have the éffect of dedicating the roads and streets thereon to the public in fee or merely convey a public servitude of right of way.

On June 23, 1966, Appellant purchased from Louis C. Chenel Lot 7, Block 4, Addition 1, Merrywood Estates Subdivision, and Additions 1, 2 and 3, St. Tammany Parish, as shown on a then unrecorded map of said subdivision by Robert A. Berlin, Surveyor, dated January 17, 1966. Said map was recorded November 8, 1966, in the records of the Clerk and Recorder, St. Tammany Parish, and bears the following unsigned legend:

“Approval is hereby granted for this subdivision with the understanding that the streets shown hereon are to be private ways and shall not be accepted into the St. Tammany Parish Road System until they are formally dedicated to the police jury of said parish and at such time shall meet the minimum parish specifications then in effect. The streets shown hereon are private ways to be maintained without public assistance.”

The Berlin plat shows Merrywood Estates to be situated on the south side of La. Highway 40, which runs in a northwesterly-southeasterly direction. Lot 1, as shown thereon, measures 220 feet front along the south side of the highway and is situated at the extreme northwest corner of the subdivision. Lots 2, 3, 4, 5 and 6, successively proceed in a southeasterly direction. Lot 6, measuring 288 feet front, is bounded on its eastern extremity by an unnamed 60 foot entrance street which in turn is bounded on its eastern extremity by Lot 13 which fronts 347 feet along the highway. At the south ends of Lots 6 and 13, the entrance street is shown branching into a “Y”. As one enters the subdivision from the highway, the unnamed right branch of the “Y” runs in a southwesterly direction, south of Lots 6, 5, and 4, a distance of approximately 800 feet to about the center of the South line of Lot 4, approximately 500 feet south of the highway, at which point it dead ends at Orleans Street which runs perpendicular to the highway. The left branch of the “Y” goes in a southeasterly direction behind Lots 13, 14, 15 and 16, which face the highway, and at a point approximately 1,000 feet south of the highway connects directly with Normandy Street which runs perpendicular to the highway. Appellant’s property is situated on the west side of Orleans Street approximately 700 feet south of the point where the right “Y” branch ends. As shown on this map, Orleans Street does not have direct access to the highway.

On December 23, 1971, Appellees recorded in St. Tammany Parish, a map entitled “Merrywood Estates Subdivisions and Additions 1, 2, 3 and 4 by Jeron R. Fitzmor-ris, Surveyor, dated April 1, 1969.” This map shows addition 4 to consist of a strip of land lying immediately to the west of Lot 1 shown on the Berlin map. The Fitz-morris map bears the approval of the President of the St. Tammany Parish Police Jury, the Parish Engineer, Secretary of the St. Tammany Parish Planning Commission and Chairman of the Subdivision Regulatory Commission, under date of November 18, 1971, which approval reads as follows:

“Approval is hereby granted for this subdivision with the understanding that streets shown hereon are to be private ways and shall not be accepted into the parish road system until they are formally dedicated to the parish and at such time shall meet the parish minimum requirements then in effect. Until such time that they are so accepted these streets will be maintained without public assistance.”

The Fitzmorris map changes the subdivision entrance, from its former location between Lots 6 and 13, to a point 600 to 700 feet westerly. It shows the new entrance to consist of a 100 foot wide boulevard type entrance situated between Lots 3 and 4, and leading from the highway directly south to Orleans Street, thus connecting Orleans Street with the highway on a straight line.

Although Appellant purchased his lot from Louis E. Chenel, in November, 1972, Appellant received a notice from Appellee requesting payment for certain street improvement work allegedly performed by Appellee corporation in the subdivision. A second notice was received by Appellant in June, 1973.

On June 12, 1974, Appellant instituted action against Chenel, L.E.C., Inc., and others, for injunctive relief to secure Appellant’s possession of, and access to, all entrances, roads and streets in the subdivision. Appellant averred his physical possession of Lot 7 since its acquisition and claimed disturbance thereof by defendants in that defendants have moved the subdivision entrance, are claiming title to the streets and roadways in the subdivision and have refused to make formal dedication of the roads and streets as required by La~R.S. 33:5051. Appellant prayed for in-junctive relief prohibiting defendants from claiming ownership of the streets, mandating defendants to restore the original entrance and also mandating defendants to formally dedicate the streets as shown on the Berlin map of January 17, 1966, in default of which the court declare the dedication.

Coupled with his action for injunctive relief, Appellant filed a notice of lis pen-dens giving notice as follows:

“The object of this suit is to obtain judicial confirmation of the ownership of the roads, servitudes and rights of access and ingress to all properties in Merry-wood Estates Subdivision which is described generally as follows:
A part of Section 7, 18 and 19, Township 5, South, Range 11 East, St. Tammany Parish, Louisiana.
Particular relief is sought for the reclamation of the closed entranceway to Merry wood Subdivision being a part of Lot 6 and/or 13 of the subdivision facing Louisiana Highway 40.”

In this action, Appellee contends the change in entrance location, both of which sites are owned by A.ppellee, was made in compliance with the mandate of the Parish Governing Authority based upon recommendation of the Parish Engineer and Parish Subdivision Regulatory Commission, pursuant to regulations of the Parish Governing Authority, all of which authorities have approved the Fitzmorris map. Appellee suggests that Appellant has no privity of contract with Appellee for the ultimate design and location of the subdivision entrance and that Appellant is without-right to bring an action to enjoin such a change or file a notice of lis pendens in connection therewith. In Appellant’s original action, as in this suit as well, Appellee contends that recordation of the Berlin and Fitzmorris maps constitutes statutory dedication to the public of a servitude of passage over all streets and roads shown on the Fitzmorris map. Appellee also contends that title to all such streets and roads was retained by Appellee. Alternatively, Appellee argues that since a servitude of passage has been granted the public, Appellant has no right to litigate ownership of the street areas, therefore Appellant’s notice of lis pendens should be restricted to affect only the lots involved, namely, Lots 4, 6 and 13. Entitlement to such relief is claimed by Appellee on the ground that to permit the notice to affect the entire subdivision will cause Appellee irreparable injury by rendering unmerchantable the title to all lots in the subdivision despite only a few lots being in actual dispute.

The lower court rendered judgment ordering Appellant’s notice of lis pendens amended to affect only the following described property:

“Lots 4, 6 and 13, Square 7, Merrywood Estates Subdivision, situated in Sections 7, 18 and 19, Township 5 South, Range 11 East, Parish of St. Tammany.”

The purpose of a notice of lis pen-dens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. La-C.C.P. Article 3751.

To be effective, the notice required by Article 3751 above must be in writing, must be signed by the plaintiff, and must show the name of the court in which the action is filed, the title, docket number and date of filing of the action, the object of the action and a description of the property sought to be affected. La-C.C.P. Article 3752.

We deem it elementary that a notice of lis pendens is not concerned with the merits of the litigation incident to which the notice is filed. The sole purpose of the notice is to inform the general public of the precise property involved in the litigation and the object or purpose of the suit with respect to the property concerned. Beyond this, the notice has no role or function whatsoever. It follows that while we may not herein determine the issues raised in Appellant’s action, nevertheless we must consider these issues to determine whether the notice of lis pendens applies to property other than that affected by Appellant’s demands.

Appellant’s action asserts in essence that, pursuant to La-R.S. 33:5051, recordation of the Berlin and Fitzmorris maps constituted a dedication of the streets and other public areas shown thereon to the public in fee simple. In this regard we note that said statute provides that every recorded subdivision map shall contain a formal dedication by the owner of all streets, alleys and public squares or plats shown thereon to public use. We also note that our jurisprudence holds that the filing of a subdivision map, even without the required dedication, constitutes a statutory dedication of all streets thereon to public use, irrespective of the subdivider’s intention.

Appellee maintains, however, that the legends shown on the maps, particularly that on the Fitzmorris map, dedicate only a servitude over streets and public areas shown on the map. It appears, unquestionably, that the precise nature of the dedication is in dispute in this instance.

As regards location of the entrance, Appellant contends the location on the Berlin map cannot be changed without the express consent of persons who purchased property in the subdivision pursuant to that plan. Quite clearly, the land area designated as the subdivision entrance on the Berlin map and the land area designated as the entrance on the Fitzmorris map are in dispute. Appellee’s position concerning its right to make the change addresses itself to the merits of that issue. Neither are we concerned herein with Appellee’s claim that Appellant is without interest in the subject matter of Appellant’s initial action. That issue does not address itself to the proper scope of the notice of lis pendens.

Finally, we note Appellant’s contention that Appellee is without legal right to assess Appellant with the cost of street improvements undertaken by Appellee. We find this issue has become moot due to Ap-pellee’s unqualified acknowledgment of lack of authority to compel Appellant to contribute to the cost of such construction.

Inasmuch as title to subdivision streets is declared in the notice to be one of the prime objects of Appellant’s related action, the trial court erred in deleting therefrom all reference to subdivision streets.

It is ordered, adjudged and decreed, that the judgment of the trial court decreeing amendment and modification of the notice of lis pendens filed by Appellant in the matter entitled, “J. Charles Collins, Jr. V. Louis E. Chenel, et al.,” Number 40-761 on the docket of the Honorable Twenty-Second Judicial District Court, St. Tammany Parish, recorded in MOB 554, Folio 60, and COB 734, Folio 737, records of the Clerk and Recorder, St. Tammany Parish, be and the same is hereby amended and revised to apply to the following described property:

Lots 4, 6 and 13, Square 7, Merrywood Estates Subdivision and Additions 1, 2, 3 and 4, situated in Sections 7, 18 and 19, Township 5 South, Range 11 East, St. Tammany Parish, Louisiana, as shown on map thereof by R. A. Berlin, Survey- or, dated January 17, 1966, recorded November 8, 1966, COB 403, Folio 279, records of the Clerk and Recorder, St. Tammany Parish, and as shown on map of said subdivision by Jeron R. Fitzmor-ris, Surveyor, dated April 1, 1969, bearing File Number 1411 of the Clerk and Recorder, St. Tammany Parish, and recorded December 23, 1971, in the records of said Clerk and Recorder.
All of the roads, streets, alleys and public squares shown on the hereinabove described maps of Merrywood Estates Subdivision, and Additions 1, 2, 3 and 4, including particularly, the locations of the entrance to said subdivision as shown on said maps.

It is further ordered, adjudged and decreed that all costs incurred in the trial court be paid by Appellant, J. Charles Collins, Jr., and all costs of this appeal be paid by Ap pellee, L.E.C., Inc.

Amended and rendered.

PER CURIAM.

In application for rehearing, plaintiff, L. E. C., Inc., suggests we reword the notice of lis pendens decreed herein to indicate limitation of said notice to “Lots 4, 6 and 13, Square 7, Merrywood Estates Subdivision (in) Additions 1, 2, 3 and 4, situated in . . .” Similarly, applicant suggests inclusion of the word “in” between “Subdivision” and “Additions” in the second paragraph of our notice of lis pendens.

We understand applicant’s request is based on the ground that the notice is ambiguous in that it applies to property not necessarily found to be in dispute. It was our intention to restrict the notice of lis pendens to Lots 4, 6 and 13, Merrywood Estates Subdivision, and Additions 1, 2, 3 and 4, fronting on the south side of Louisiana Highway 40; the entrance to Merry-wood Estates Subdivision and Additions 1, 2, 3 and 4, from Louisiana Highway 40; and, all of the streets, alleys and public squares in Merrywood Estates Subdivision and Additions 1, 2, 3 and 4, as shown on the mentioned Berlin and Fitzmorris maps.

For the purpose of making our intent clear, it is ordered, adjudged and decreed that the notice of lis pendens issued herein be and the same is hereby amended and revised to read as follows:

“Lots 4 and 6, Merrywood Estates Subdivision, Addition Number 1, and Lot 13, Merrywood Estates Subdivision situated in Sections 7, 18 and 19, Township S South, Range 11 East, St. Tammany Parish, Louisiana, as shown on map of said Merrywood Estates Subdivision and Additions 1, 2 and 3 by R. A. Berlin, Surveyor, dated January 17, 1966, recorded November 8, 1966, COB 403, Folio 279, records of the clerk and recorded, St. Tammany Parish, and as shown on map of Merrywood Estates Subdivision and Additions 1, 2, 3 and 4, by Jeron R. Fitz-morris, Surveyor, dated April 1, 1969, bearing File Number 1411 of the clerk and recorder, St. Tammany Parish, and recorded December 23, 1971 in the records of said clerk and recorder.
All of the roads, streets, alleys and public squares shown on the hereinabove described maps of Merrywood Estates Subdivision and Additions 1, 2, 3 and 4, including particularly the locations of the entrance to said subdivision, as shown on said maps.”

The application for rehearing is denied, all costs incident to this application to be paid by applicant.