text:
    GERTRUDE GARDNER, INC. v. Shirley McNAMARA, Secretary, Department of Revenue, etc.
    No. 11944.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.

      William H. Reinhardt, Jr., Metairie, of counsel for plaintiff-appellant Gertrude Gardner, Inc.
    Edwin M. Callaway, Baton Rouge, of counsel for defendant-appellee Shirley McNamara, Secretary Department of Revenue, Etc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a suit for the recovery of taxes paid under protest pursuant to La.R.S. 47:1576. The taxes were assessed under the provisions of the Louisiana Occupational License Tax, La.R.S. 47:341 et seq., for the years 1973 through 1976.

Plaintiff-appellant, Gertrude Gardner, Inc., is a Louisiana corporation with its principal place of business in Orleans Parish. It is engaged in the real estate brokerage business in the parishes of Orleans, Jefferson, St. Tammany, St. Bernard, and, for a portion of the time pertinent to the decision herein, Tangipahoa Parish.

The defendant-appellee, Collector for the Department of Revenue and Taxation (Collector), in addition to imposing the occupational license tax on commissions derived from plaintiffs main office in Orleans Parish, imposed the tax upon commissions which were allocated by the Department of Revenue to plaintiff’s various branch offices. An assessment of $31,281.94 was paid under protest by plaintiff on March 22, 1977, and suit was subsequently filed for the recovery thereof on grounds that only one tax should have been assessed for all offices combined in the maximum amount required under La.R.S. 47:348.

Finding that the taxes were properly assessed as to the various branch offices on the basis of La.R.S. 47, Sections 345 and 348 of the occupational license tax, the trial court ruled in favor of the Collector holding that the taxes were not recoverable.

Plaintiff’s specification of errors are:

“1. The trial court erred in holding that La.R.S. 47:345 clearly applied to La.R.S. 47:348 allowing the State Department of Revenue and Taxation to tax the various offices of a real estate brokerage business separate from the main office.
“2. The trial court erred in holding that the separate offices of plaintiff-appellant’s brokerage firm were separate businesses and therefore subject to separate occupational license tax for each location.
“3. The trial court erred by ignoring the dispositive holding of State vs. Norman Mayer & Co., 170 La. 337, 127 So. 743 (1930) wherein the Supreme Court held that the separate place of business tax under the Louisiana Occupational Tax Statute did not apply to a brokerage business.
“4. The trial court erred in holding that plaintiff-appellant must bear the burden of showing that La.R.S. 47:345 does not clearly apply to La.R.S. 47:348.
“5. The trial court erred in holding that it must determine applicability of a tax on a case by case basis.”

With respect to assignments of errors numbers 1, 2, 3 and 5, we concur with the trial court’s finding of fact and application of law. In this regard we adopt the following quoted portion of the trial judge’s Written Reasons for Judgment, to-wit:

“Plaintiff contends that the occupational license tax does not apply to the branch offices of real estate brokerage firms in that the brokerage firm is taxed as a single business no matter the number of offices maintained or wherever located. Plaintiff cites R.S. 47:348 for this contention, the pertinent portion of which is:

§ 348. Real estate brokers
‘For carrying on each business known as real estate broker, the license shall be based on gross annual commissions earned for services performed by the broker or agent in Louisiana regardless of whether the principal or party solicited is within or without this state. Gross annual commissions shall include all income, earnings, and receipts from negotiating the purchase or sale of real property, procuring loans on mortgages, collecting rents, attending to the renting and leasing of houses and lands, and from other activities common to a real estate brokerage business.’

“Defendant contends that the controlling provision is R.S. 47:345, as follows:

345. Separate license required for each location and each class of business
‘Except as otherwise expressly provided herein, any person taxed under this Chapter having one or more places of business shall pay a separate license for each class of business at each place.
‘A separate license for each class of business at each place of business shall not be required where any person has taxable annual gross sales and taxable annual gross receipts in an aggregate amount of less than five thousand dollars ($5,000.00), or has only taxable annual gross sales or taxable annual gross receipts in an amount of less than five thousand dollars ($5,000.00). Only one license shall be required for each place of business, which license shall be based upon the classification of business which constitutes the major portion of the taxable annual gross sales or taxable annual gross receipts.’

“Defendant contends that the provision is free of all ambiguity and expresses the legislature’s intention clearly.

“Plaintiff advances several arguments in favor of its contention that the occupational license tax does not apply to the branch offices of real estate firms:

“First, plaintiff contends that it is the intent of the legislature to tax a real estate broker as an ‘occupation’, as opposed to taxing separate ‘places of business’.

“Plaintiff’s scholarly discussion of the legislative history of the occupational license tax laws fails to persuade the Court that the history of the legislation has any bearing at all on the legislative intent to tax branches of real estate brokerage businesses. The fact remains that Section 345 is ‘clear and free from all ambiguity’; therefore, ‘the letter of it is not to be disregarded, under the pretext of pursuing its spirit’. LSA-C.C. Art. 13.

******

“Plaintiff cites several cases as dispositive of the issue of whether real estate brokerage businesses should be taxed on the occupation as a whole and not as to each separate office. This Court does not view the narrow issues presented in any of these cases as dispositive of the issue raised by plaintiff’s suit.

“In Guillot v. Central Bank & Trust Co., 143 La. 1053, 79 So. 857 (S.Ct., 1918), the Supreme Court refused to apply the predecessor of Section 345 to banks and held that, since the section applicable to banks based its tax on capital only, a single tax was due. Plaintiff would use this holding by analogy to reach the same result with real estate brokerage businesses, since neither section (R.S. 47:346 for banks and R.S. 47:348 for real estate brokers) has a paragraph levying the tax on separate places of business.

“This Court agrees with defendant that there can be no analogy between the banking business and the real estate brokerage business. In the banking business the tax is based on total declared capital of the bank; in the real estate brokerage the tax is based on gross annual commissions earned for services performed. Whereas, each separate branch of a bank has no capital of its own, commissions may be earned by either the main office or any branch office. The language, ‘It is evident that the words “each business” are thus used in the sense of “each occupation” ’, in the Central Bank decision [79 So.] at 859, only supports the conclusion that banks are to be taxed as a whole because of the basis adopted by the legislature in fixing the amount of licenses for banks. The language of the decision supports no general conclusions as to other categories of businesses.

“Next, plaintiff cites State v Norman Mayer & Co., 170 La. 337, 127 So. 743 (S.Ct., 1930), for the proposition that the predecessor statute of Section 345 did not apply to the cotton factorage and commission business, a business taxed in the same section of that statute as were real estate brokerage businesses. It is the opinion of this Court that the business involved in Norman Mayer was taxed as an ‘occupation’ simply because the Court found the only purposes of the ‘branch’ office were to take orders and to disburse information. The Court indicated that it would tax separate places of business under different facts than those involved. ‘To be subject to the tax, it must appear that the agent or agency was engaged in the conduct of a local cotton facto-rage or commission brokerage business.’ State v Norman Mayer, Id.

“This Court believes that Norman Mayer cannot be cited as applying the ‘occupation’ label to all cotton brokerage businesses, no matter what the facts of the particular situation, much less as applying the ‘occupation’ label to all brokers — including real estate brokers — mentioned in the old statute.

“Plaintiff’s third argument is that Section 345, if read literally, applies not to separate ‘places of business’, but rather to separate ‘classes of business at each place’. This argument has no merit because the section literally requires that ‘any person taxed under this Chapter having one or more places of business shall pay a separate license for each class of business at each place’, (emphasis added).

“Plaintiff contends the section is at least ambiguous because there is no reason for so many sections subsequent to Section 345 to contain separate ‘place of business’ language if Section 345 is not a ‘class’ rather than a ‘place’ tax. Plaintiff contends that since the section is ambiguous, the ambiguity must be decided in the taxpayer’s favor. Plaintiff overlooks the fact that there are numerous other sections dealing with specific businesses which contain no separate ‘place of business’ language. Unlike plaintiff, this Court would not have to ‘give the Legislature credit for not duplicating that which the State would have us believe is obviously universal in this application’.

“Finally, plaintiff cites two cases dealing with city occupational license taxes; In City of New Orleans v. W. Horace Williams Co., 212 La. 831, 33 So.2d 653 (S.Ct., 1947) the court held that jobs done outside the city were not separate businesses within the contemplation of the occupational license tax law. In City of Hammond v. Orkin Exterminating Co., Inc., 248 So.2d 25 (1st Cir. [La.App.], 1971) the court held that spraying of insecticide in homes outside the city were not separate businesses.

“Rather than bolster plaintiff’s argument, these cases exemplify that the courts will look to each factual situation to determine whether a particular operation is truly a ‘separate place of business’. In reaching this determination the courts may be guided by past cases. For example, in Murrel v. Brokenfohr, 108 La. 19, 32 So. 176 (S.Ct., 1902), in finding that a warehouse was a separate place of business, the Supreme Court used this language:

‘The practical effect of this is to localize the business, and to get a profit from another branch of industry, distinct and separate from the home office of defendant’s business.’

and this language [32 So.] at 177:

‘We understand that the business subject to license tax is a commercial enterprise; that it is a business for profit.’

“In State v. Norman Mayer & Co., supra [127 So.] at 743, in finding that an office was not a separate place of business, the Supreme Court used this language:

‘To be held subject to the tax, it must appear that the agent or agency was engaged in the conduct of a local cotton factorage or commission brokerage business.’

“In S. Zemurray & Co. v. Town of Franklin, 134 La. 803, 64 So. 719 (S.Ct., 1914), the business of selling bananas from freight cars was held subject to a license tax. Justice Land held:

‘From the admitted facts, it appears that the plaintiff was engaged in the business of selling bananas at wholesale in the town of Franklin just as effectually as if it had a branch establishment in that place. Plaintiff owes a license for each and every branch of its business. See Sheriff and Tax Collector v. Brokenfor [Brokenfohr], 108 La. 19, 32 South. 176.’

“This Court believes that the absence of language expressly evidencing the intent to tax separate places of business in R.S. 47:348 does not indicate the legislative intent to exempt real estate brokers from the general application of R.S. 47:345. It is the opinion of this Court . . that the determination of whether a real estate brokerage firm’s branch office is a ‘separate place of business’ within the contemplation of R.S. 47:345 should be made on a case by case basis, using prior cases for guidance.

“It appears that the branch offices of plaintiff are engaged locally in the conduct of real estate brokerage throughout the metropolitan New Orleans area. Regardless of whether they are conveniences for plaintiff’s customers, they appear to be commercial enterprises endeavoring to make a profit for Gertrude Gardner, Inc. Regardless of whether they offer less services and perform fewer operations than the main office, they are staffed by agents who initiate and conclude major aspects of the real estate brokerage business. Regardless of whether their accounting and expenses are handled from the main office, customers availing themselves of their services would be able to consummate real estate business to the same extent as they would with many other real estate brokerage firms. For these reasons, this Court is of the opinion that Gertrude Gardner’s branch offices are ‘places of business’ within the contemplation of R.S. 47:345.”

The case of Morgan & Lindsey, Inc. v. Louisiana State Board of Health, 169 So.2d 560 (La.App. 4th Cir. 1964), cited by plaintiff to this court in support of its position, is not controlling in the instant case for the reason that that case dealt with La.R.S. 40:1203(G) of the Public Health and Safety Act and Title 40 contained no section similar to La.R.S. 47:345.

Further, a fair construction of La. R.S. 47:345 compels the conclusion that a separate license tax is thereby imposed upon any person who has one or more businesses within the same class as well as upon any person who has one or more businesses of different classes. Even if we were to concede, arguendo, that La.R.S. 47:345 is ambiguous in this respect, the title to the section removes any doubt as to the intent of the Legislature. The title thereof recites: “Separate license required for each location and each class of business.”

With respect to assignment of error number 4 we agree with appellant that “ ‘Statutes and ordinances imposing license and business taxes must be construed strictly in favor of the citizen and against the government * * * License laws cannot be extended by construction, omissions cannot be supplied by the Courts, and no license-tax can be exacted which is not imposed by the words of the statute or ordinance.’ ” State v. Norman Mayer & Co., 170 La. 337, 127 So. 743 (1930). These principles, however, do not prohibit the courts from inquiring into the facts to determine whether a particular location or office falls within the definition of “place of business”, which is taxable under the expressed provisions of the statute.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Gerald L. SARTIN v. ST. PAUL FIRE AND MARINE INSURANCE CO. et al.
    No. 11957.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      J. Daniel Rivette, New Orleans, and J. Lee Wimberley, Jr., Church Point, of counsel, for plaintiff-appellant Gerald L. Sartin.
    Robert L. Klienpeter, Baton Rouge, of counsel, for defendant-appellee Doctors Memorial Hospital.
    Donald T. W. Phelps, Baton Rouge, of counsel, for defendants-appellees Dr. Charles A. Strange, individually, Drs. Charles A. Strange, Herbert K. Plauche, James T. Kilroy, and John A. Thomas, Professional Medical Corporation, and Insurer.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff Gerald L. Sartin appeals a judgment of the trial court sustaining defendants’ exceptions of prescription and dismissing his suit with prejudice. Plaintiff filed a medical malpractice action for damages arising from the negligent act of one or more of the defendants during the course of plaintiff’s surgery and hospitalization for the insertion of a metal pin in his left tibia which resulted in infection and pain in his leg.

Made defendants are St. Paul Fire and Marine Insurance Company, Dr. Charles A. Strange, individually, Dr. Charles A. Strange, Herbert K. Plauche, James T. Kilroy and John A. Thomas, a professional medical corporation, and Doctors Memorial Hospital.

The facts giving rise to this action are as follows:

Plaintiff was operated on for insertion of the metal pin on February 5, 1975. On February 17,1975, plaintiff was seen by Dr. Strange’s partner, Dr. Thomas, who noted some blisters, and some skin inflammation and/or infection. Plaintiff was then seen on February 25, 1975, and at that time the skin was much improved. On March 18, 1975, plaintiff was seen by Dr. Strange complaining of pain, moderately severe in nature, at which time Dr. Strange noted that no infection was evident. On March 28, 1975, plaintiff was again seen by Dr. Strange, at which time infection was noted which was evidenced by a defect where the pin had been inserted of a size between a nickel and a quarter, and an area of fistulous tract of an abscess several inches above the ankle joint which area was not involved in the prior surgery. On said date surgery was scheduled and the operation was performed on April 9,1975, removing the metal pin. A culture was grown and the infection was identified as a staph some forty-eight (48) hours later.

Suit was filed on April 8, 1976, and the defendants filed exceptions of prescription. The trial court, finding that the plaintiff had actual knowledge of the infection more than a year prior to April 8,1976, ruled that the action was prescribed.

Plaintiff assigns as error the trial court’s finding that plaintiff had sufficient knowledge of the tortious act prior to April 8, 1975, to commence the running of prescription.

The applicable prescriptive period is set out in La.R.S. 9:5628, which provides that suit in actions for medical malpractice must be filed “. . . within one year from the date of the alleged act, omission or neglect, or within one year from the date of the discovery of the alleged act, omission or neglect; . . . ”

In Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the Louisiana Supreme Court held that the injured party need not have actual knowledge of the conditions to start the running of prescription as long as there is “constructive notice,” i. e., “(W)hatever is notice enough to excite attention . . . and call for inquiry.”

When one is charged with constructive notice, it has the effect of charging him with “notice and knowledge of all matters which diligent inquiry may have revealed.” Marcel v. Hospital Corp. of Sisters of Saint Joseph, 322 So.2d 302 (La.App. 1st Cir. 1975).

In Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1975), writ refused, it was held that “. . . prescription does not commence to run until plaintiff has actual or constructive knowledge of the tortious act, the damage and the causal relation between the tortious act and the damage.”

Plaintiff contends that under the above-mentioned jurisprudence he cannot be charged with notice, either actual or constructive, until after the operation on April 9, 1975 for removal of the metal pin because it was only after that time that the causal relation between the infection and a tortious act could be determined by diligent inquiry. We agree.

While we agree that plaintiff had actual knowledge of the infection, which constitutes the damages complained of, at least as early as March 28, 1975, and more than one year prior to the filing of the suit as found by the trial court, we are of the opinion that this knowledge was insufficient to commence the running of prescription because plaintiff, at that time, had no way of knowing that a tort had been committed. Nor was there any way that plaintiff could be aware of any causal connexity between the infection and the operation of February 5, 1975. Duhon v. Saloom, supra.

It is not the operation itself which constitutes the act complained of, but rather the act, omission or neglect that allowed the introduction of staphylococcus into the tibia during the operation when the pin was inserted.

Dr. Charles A. Strange, one of the defendants, testified that the cause of the infection could not have been determined until after the cultures had grown, some forty-eight (48) hours after the operation on April 9, 1975. The infection could have been caused by other factors not related to the operation of February 5,1975, and independent of any tortious act.

We, therefore, hold that plaintiff could not have discovered “the alleged act, omission or neglect” until forty-eight (48) hours after the operation of April 9,1975, which is within one (1) year of the date of the filing of the suit.

For these reasons the judgments of the trial court sustaining the exceptions of prescription filed by defendants are reversed and said exceptions are hereby overruled, and the case is remanded to the trial court for further proceedings.

Costs of this appeal are to be paid by defendants; all other costs are to await the final disposition of the case.

REVERSED AND REMANDED.


text:
    Elton Ray WHITE, Individually, etc., et al. v. Ernest M. LeGENBRE, Individually, etc., et al.
    No. 11985.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.
    Writ Refused July 3, 1978.
    James R. Coxe, III, Baton Rouge, of counsel for plaintiff-appellant Elton Ray White.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant-appellee Bobbye E. Holland.
    Clifton 0. Bingham, Jr., Arthur H. Andrews, Baton Rouge, of counsel for defendant-appellee Ernest LeGendre.
    Lee C. Kantrow, Lewis 0. Unglesby, Baton Rouge, of counsel for defendant-appel-lee Steve Holland.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, Elton Ray White, individually, and as the administrator of the estate of his minor son, Michael White, appeals judgments granting motions for summary judgment in favor of the defendants, Bobbye E. Holland and her insurer, State Farm Fire and Casualty Company.

The defendants have not answered nor have they appealed.

Plaintiff filed a tort action for damages and injuries tQ his minor child resulting from an alleged assault and battery committed upon his minor child by three minor defendants, one of whom is Steve Holland, son of the defendant, Bobbye E. Holland.

In the original petition plaintiff sued Bobbye E. Holland, individually, and as the natural tutrix of the minor, Steve Holland, alleging that Ms. Holland is the natural tutrix of the child and is either judicially separated or divorced from her husband and that she has the care, custody and control of her minor child, Steve Holland.

In response thereto, Ms. Holland filed the dilatory exception of lack of procedural capacity on the grounds that she had never been qualified as natural tutrix of the minor, Steve Holland. An affidavit filed of record recites the following: That she is the mother of Steve Holland; that she and the father of Steve Holland were not married at the time of his birth, November 22,1960, nor have they married since that date; that she has never been appointed tutrix of the minor, Steve Holland.

By judgment rendered on July 1, 1977 and signed on July 5, 1977, the dilatory exception was sustained and plaintiff was allowed 15 days to amend his petition to name the minor, Steve Holland, as a defendant through a curator ad hoc to be appointed to represent him. The amendment was later filed and is not at issue herein.

On July 5, 1977, plaintiff filed a supplemental and amending petition alleging that Bobbye E. Holland was the natural tutrix of her minor child and is answerable for any damages caused by her minor son under La.R.C.C. Arts. 256 and 2318.

With respect to the suit against Ms. Holland individually for vicarious liability for damage occasioned by her minor son, an exception of no right and/or cause of action and a motion for summary judgment was filed on grounds that since her son is illegitimate, she has no parental authority over him and, consequently, no responsibility for his actions under Louisiana law. Judgment was rendered granting the motion for summary judgment and dismissing suit as to Ms. Holland, in her individual capacity, and a curator ad hoc was appointed to represent the minor, Steve Holland, on July 22, 1977.

Under the provision of the insurance policy which excludes coverage for bodily injury or property damage which is “intended” from the standpoint of the insured, the defendant, State Farm Fire and Casualty Company, also filed a motion for a summary judgment which was also granted by judgment dated September 27, 1977. It is from these judgments that plaintiff appeals.

Plaintiff maintains that the mother of an illegitimate minor child is constituted the tutrix of her child by operation of law pursuant to La.R.C.C. Article 256, and therefore the mother need not qualify as the natural tutrix of her illegitimate minor child to incur responsibility for the minor’s tortious acts. We agree.

Although it is true that under La.R.C.C. Article 238, illegitimate children, generally speaking, belong to no family and have no relations, and that accordingly they are submitted to no parental authority, they may still be subject to tutorial authority for purposes of La.R.C.C. Article 2318.

La.R.C.C. Article 2318 provides:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

Thus, under the above-mentioned article the same responsibility that is imposed upon parents for the exercise of parental authority is also extended to tutors for the exercise of tutorial authority.

La.R.C.C. Article 256 provides, in part:

“The mother is of right the tutrix of her illegitimate child not acknowledged by the father, or acknowledged by him alone without her concurrence.”

La.R.C.C. Article 253 further provides, in part:

“The mother is not compelled to accept the tutorship of her minor children, but in case she refuses, she shall be bound to fulfill the duties of a tutor, until she has caused a tutor to be appointed.”

It was held in Tripoli v. Gurry, 187 So.2d 540 (La.App. 4th Cir. 1966), that a mother who had been granted the custody of her legitimate child in a separation proceeding, was the natural tutrix of the child and could be sued and held responsible for the damages caused by the child although the mother had never formally qualified as the tutrix of the child.

We are of the opinion that this principle also applies to the mother of an illegitimate minor child who has not formally qualified as the tutrix of said child. The mother in this case is made tutrix by operation of the law, R.C.C. Art. 256, just as the surviving parent and the parent under whose care a minor has been entrusted is made tutor or tutrix of their legitimate child by R.C.C. Art. 250. Under both situations, neither can escape responsibility for the actions of their child simply by failing or refusing to qualify as tutrix of their child. The procedural incapacity of Ms. Holland to represent her illegitimate minor son because she has not taken the necessary steps to qualify as his tutrix, does not relieve her, individually, of the vicarious liability for the tortious acts of her minor son imposed upon her by virtue of her tutorial authority. The mother in this case is being sued personally for the liability imposed upon her by operation of the law and not as a representative of her minor son. Her procedural capacity to represent her minor child is not the issue in this case. The issue is whether the mother of an illegitimate minor child, who is residing with her, has any individual legal liability for the torts of the minor child independent of whether any procedural steps are taken to qualify as tutrix. Under the Articles of the Civil Code quoted above, we hold that the mother of an illegitimate minor child is liable for the torts committed by that child even though she has not been formally qualified as tutrix of that child.

Although the summary judgment as to the defendant, State Farm Fire and Casualty Company, may be correct under the exclusionary clause of the policy with respect to its liability for the intentional acts of the alleged insured, Steve Holland, this does not affect its liability as to its insured, Ms. Holland.

For purposes of insurance coverage under her homeowner’s personal liability policy she would be the insured and the provision in the policy for the exclusion of coverage for injury or damage which is intended from the standpoint of the insured would not apply to her. See: McBride v. Lyles, 303 So.2d 795 (La.App. 3rd Cir. 1974). It was therefore error to dismiss plaintiff’s petition against State Farm.

For the above reasons the judgments of the trial court granting summary judgments in favor of Bobbye E. Holland and State Farm Fire and Casualty Company and dismissing plaintiff’s suit against them are reversed and the case is remanded to the trial court for further proceedings.

Costs of this appeal are to be paid by Bobbye E. Holland and State Farm Fire and Casualty Company and all other costs are to await the final disposition of the case.

REVERSED AND REMANDED.


author: LANDRY, Judge.

text:
    Warren J. TULLIER, Sr., et al. v. TANSON ENTERPRISES, INC., et al.
    No. 11921.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearings Denied June 12, 1978.

      A. J. Spedale, Baton Rouge, of counsel, for plaintiff-appellee Warren J. Tullier, Sr., et al.
    Leon Gary, Jr., Baton Rouge, of counsel, for defendant-appellant Tanson Enterprises, Inc.
    Harvey H. Posner and Felix Weill, Baton Rouge, of counsel, for defendant-appellant Commercial Properties Development Corp. & Shopper’s Fair Co./S. F. Realty.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiffs-appellees. (Lessor) instituted these proceedings to cancel a long term ground lease originally granted to defendant, Commercial Properties Development Corporation (CPDC) and presently held by Tanson Enterprises, Inc. (Tanson) by virtue of intervening assignments. Cancellation of the lease is sought for default consisting of failure to timely pay rentals and other alleged defaults in contractual obligations.

The primary issue is whether notice of default was given in accordance with lease provisions. Secondarily, we are concerned with the use to which the property could be put by the lessee and the nature of repairs required to be made by lessee to improvements on the premises.

On January 21, 1958, Benjamin J. Tullier and his wife, Pearl P. Tullier leased subject premises to CPDC for an original 25 year term at a rental of $750.00 monthly. At lessee’s option, the lease was made renewable for two consecutive 25 year terms and a final 24 year term at the same rental. Benjamin J. Tullier died; his widow and heirs are plaintiffs herein.

On October 9, 1959, CPDC assigned its interest in the lease to Shoppers Fair Company, a partnership composed of Wilbur Marvin and Kenneth M. Kurson. Shoppers Fair Company subsequently became S. F. Realty, a partnership also composed of Marvin and Kurson. On June 24, 1963, S. F. Realty assigned its interest to Tanson. This action was instituted by Lessor on April 27, 1976, seeking cancellation for failure of Tanson to timely pay rentals due December 1, 1975, January 1, February 1, and March 1, 1976, and other alleged defaults. Lessor sought payment of past due rent, 1975 property taxes, attorney’s fees and the cost of repairs required to maintain the improvements suitable for use as a shopping center.

Named defendants are: CPDC; Tanson; Shoppers Fair Company; S. F. Realty; Mangel Stores Corporation, a holding company owning Shoppers Fair of Baton Rouge, Inc., which was a former sub-lessee; and Prudential Life Insurance Company, a leasehold mortgagee. Mangel Stores Corporation, Shoppers Fair of Baton Rouge, Inc., and Prudential have been dismissed from the action.

Tanson reconvened against Lessor claiming damages for alleged constructive eviction resulting from Lessor’s action to cancel the lease, and of course, resisted Lessor’s effort to cancel. Shoppers Fair Company, S. F. Realty and CPDC joined Tanson in resisting Lessor’s demands and third partied Tanson seeking judgment against Tan-son, for whatever amounts said third party plaintiff might be cast to Lessor.

The trial judge found Tanson in default for failing to timely pay rentals and taxes due on the leased premises. Judgment was rendered in favor of Lessor against Tanson, CPDC, Shoppers Pair Company and S. F. Realty ordering cancellation of the lease and against said defendants in solido for rentals due December, 1975 — April, 1976, in the sum of $3,750.00 and also the sum of $54,187.00 required to repair improvements to make them usable for shopping center purposes. Lessor’s demand for attorney’s fees was rejected. Judgment was also rendered in favor of CPDC, Shoppers Fair Company and S. F. Realty against Tanson on the third party demand against Tanson. Tanson’s reconventional demand against Lessor was dismissed.

Tanson, CPDC, Shoppers Fair Company and S. F. Realty have appealed the judgment against them in favor of Lessor. They maintain that there was no default and no basis for the trial judge’s award of damages for repair predicated on use of the premises for shopping center purposes. Tanson also appeals dismissal of its recon-ventional demand against Lessor and the judgment rendered against it on the third party demand. Third party plaintiffs pray for judgment in their favor against Tanson for any amount they may be cast to Lessor on appeal.

FACTUAL BACKGROUND

Tanson is a New York corporation with no office or place of business in . Louisiana. From its acquisition of the lease in 1963 until December, 1975, Tanson paid all rentals promptly and apparently complied with all provisions of the lease, without complaint. After acquiring the lease, CPDC, or its assigns, constructed improvements which made the premises a shopping center. One structure, containing 45,000 square feet of space, was sub-leased to a retail outlet known as Shoppers Fair of Baton Rouge, Inc., a discount division of Mangel Stores Corporation. A second building, containing 30,100 square feet, was sub-leased to and occupied by a food chain known as Krogers. Prior to 1973, the site declined as a shopping center location. One of the buildings burned, but was reconstructed. Eventually, the premises became vacant and were subject to extensive vandalism, particularly the structure previously occupied by Krogers. The black topped parking area fell into disrepair and developed numerous holes. It appears that prior to December, 1975, Tan-son was considering the possibility of abandoning the lease. Tanson did not pay rent due on December 1,1975, nor did it pay rent due January 1, 1976.

Article 3 of the lease provides for payment of rental monthly on the first day of each month by check payable to Benjamin J. Tullier and Pearl P. Tullier, addressed to Baton Rouge, Louisiana.

Rider B attached to the lease requires the tenant to páy all taxes and other assessments levied or charged against the property. It recites that tenant: “will if requested by Landlord, on or before the first day of March of each year, exhibit to the landlord receipts showing that all taxes and any such assessments for the preceding year have been paid, and will, upon written application of Landlord, furnish Landlord for inspection and such use as may be proper in protecting the interest of Landlord in said premises, the written evidence of any and all such payments whenever demanded.”

Article 11 of the lease grants lessee the privilege of erecting such improvements as lessee sees fit. In the event of destruction of a building, lessee is obligated to reconstruct a similar building. This article also provides:

“The tenant shall be responsible for and keep the exterior, roof, appurtenances thereto (which shall include sidewalks, abutting on the demised premises) in good order and repair. The Tenant agrees to maintain and keep in repair the interior and store front of any building or improvement now or hereafter upon the demised premises. Tenant agrees to restore promptly any and all plate glass in or about the demised premises which may become damaged or broken.”

Use of the premises is governed by Article 7 of the lease which states: “The premises hereby demised shall not be used for any unlawful purpose during the term of this lease.” Also regarding use, Rider C clearly indicates that the parties intended the improvements to be erected by lessee were for operation of a “chain store”. Rider D expressly obligates the lessee to construct “a . . . one story (or multi-sto-ry) building . . designed for chain store occupancy”.

Default is defined and governed by Article 18, which states:

“This lease is made upon the condition that the Tenant shall perform all the covenants and agreements herein set forth to be performed by it, and if, at any time, any rent or other charge shall become in arrears and unpaid for a period of thirty (30) days after the same shall become due, or if any of the covenants or agreements to be carried out or performed by the Tenant shall not be performed as herein stipulated, within the period of thirty days (30) after default in the performance of said covenants and agreements, then the Landlord, at Landlord’s option, upon first giving thirty (30) days written notice to the Tenant and to any mortgagee, sub-lessee, or assignee, as herein elsewhere set forth, shall have the right to enter upon the above described and demised premises at any time after the expiration of said thirty (30) days written notice, and take possession thereof, and bring suit for and collect any rents, or other charges which may have accrued up to the time of such re-entry, provided that the Tenant or any mortgagee, assignee, or sub-lessee during said thirty (301 day period, after written notice shall have been given, shall have the right to settle and pay in full any and all rightful claims of Landlord under this instrument which are then delinquent, or take any other action necessary to cure Tenant’s default, and further provided that such thirty (30) day period shall be extended, if necessary, in the event that Tenant, or any mortgagee, assignee, or sub-lessee shall commence to cure said default and shall diligently pursue same to completion.”

Notice by Lessor to Tenant is provided for by Article 24 which requires notice by registered mail, in duplicate, one copy to P. O. Box 1693, Baton Rouge, Louisiana, and one copy to 333 Laurel Street, Baton Rouge, Louisiana, or such other address as the Tenant may subsequently designate. Notice by Tenant to Lessor is required to be sent to Benjamin J. and Pearl P. Tullier, 4523 Plank Road, Baton Rouge, Louisiana, Lessor being obligated to notify Tenant of an address change.

It is conceded that Tanson did not timely pay rent due December 1, 1975, and January 1,1976. It is also conceded that prior to this default Tanson had complied with all provisions of the lease.

On January 19,1976, Lessor mailed notice of default to Ben R. Miller, attorney, Baton Rouge, Louisiana, as alleged representative of CPDC, Shoppers Fair of Baton Rouge, Inc., Mangel Stores Corporation and Charles F. Noyes Co., Inc. The notice demanded payment of $1,500.00 rental due for December, 1975 and January, 1976; payment of 1975 property taxes in the amount of $7,479.90; repair of all damage to buildings and parking area; and attorney’s fees in the amount of $500.00. It is conceded, however, that the lease does not provide for attorney’s fees in the event of Tenant’s default. The notice demanded compliance within 30 days as provided by Article 18.

A second notice was mailed by Lessor on February 17, 1976. This notice was sent to Harvey Posner, Attorney, as representative of Shoppers Fair of Baton Rouge, Inc.; CPDC, Wilbur Marvin and Kenneth M. Kurson; Robert A. Hawthorne; Robert J. Conrad, as attorney for Prudential Life Insurance Company; Mangel Stores Corporation; and Tanson (at an address different from the correct address used in the first notice). This latter notice demanded the following performances on or before March 1, 1976: Payment of rental due December, 1975 — February, 1976; payment of 1975 property taxes; repair of damage to buildings and parking area; and payment of $2,000.00 attorney’s fees.

At 11:00 A.M., March 1, 1976, Tanson wired from New York a sum sufficient to pay the 1975 property taxes, $500.00 attorney’s fees and rentals due through April, 1976. Transmittal of the funds was delayed one day, however, because of malfunction of the transmittal device of the forwarding bank and another day because of Mardi Gras, which was a bank holiday. The transmitted funds were made available to Lessor’s attorney according to a letter of March 3, 1976 from Tanson’s attorney. Communication ensued between the attorney for Lessor and Tanson’s attorney concerning payment of attorney’s fees and the nature of repairs Lessor desired to be made to the buildings. Tanson’s requests for Lessor’s specification of repairs were consistently declined by Lessor. In late March, 1976, Lessors informed Tanson’s attorney of Lessor’s refusal to accept the tendered payment. On May 5, 1976, Tanson paid the 1975 taxes. Tanson did not commence any repairs prior to institution of this suit.

FINDINGS OF THE TRIAL COURT

Finding Ben R. Miller, Jr. to be the agent of Wilbur Marvin, Kenneth M. Kurson and S. F. Realty Company, the trial judge found that the January 19, 1976 notice to Miller constituted notice to these parties. Lessor urges that this conclusion is proper and urges, alternatively, that service on these parties is of no consequence since said parties are not liable herein because they no longer hold an interest in the lease. Tanson maintains, however, that this finding is erroneous because Miller did not represent these parties. Tanson also contends these parties were entitled to notice because the lease requires notice to all assignees and sub-lessees, any of whom are expressly authorized to cure an alleged default.

The trial judge relied upon La.C.C. Article 3000 as authority for holding that Miller was the representative of the named parties. This provision states that authority granted to persons exercising a profession, or fulfilling certain functions, or conducting business in the ordinary course of affairs in which they engage, need not be specific, but is inferred from the functions which these mandatories exercise. The trial judge also found that the notice of February 17, 1976, was a mere gratuitous extension of the first notice.

It is settled law that the attorney-client relationship is contractual in nature and based on the express agreement of the parties as to the nature of the work undertaken by the attorney. Agreement of an attorney to represent a client as to a particular matter does not create an agency relationship as regards other business affairs of the client. Grand Isle Campsites v. Cheek, 262 La. 5, 262 So.2d 350 (1972). To the same effect, see Crane Supply Company v. Drake and Planche, Inc., 255 So.2d 188 (La.App.4th Cir.1971); Delta Equipment and Construction Co. v. Royal Indemnity Co., 186 So.2d 454 (La.App. 1st Cir. 1966).

Mr. Miller testified that while he had represented these parties on other matters in the past, he did not represent either of them with respect to the lease in question.

The trial judge also relied upon Williams v. Palmer, 5 La. 372 (1833), and other authorities, a review of which discloses that they deal with instances in which notice was given to one who was clearly the agent of the party for whom the notices were intended. The issue here is not whether an agent may be properly served, but whether the alleged agent was in fact an agent with respect to the matter in question. We find that Miller was not the agent of the parties intended to be served and that the trial judge erred in holding otherwise.

Notwithstanding La.C.C. Article 2712 (which provides that a lessee may be evicted for failure to pay rentals timely), our jurisprudence holds that abrogation of leases is not favored in law. Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir. 1967); Arbo v. Jankowski, 39 So.2d 458 (Orl.La.App.1949).

Dissolution of a lease will be decreed only when it is shown that the lessor is clearly entitled thereto. Arbo v. Jankowski, above.

More significantly, our Supreme Court has held in Brewer v. Forest Gravel Company, 172 La. 828, 135 So. 372 (1931), that while a lessor may ordinarily dissolve a lease for failure of the lessee to pay rentals timely, the right is subject to judicial control according to the circumstances of each case. This same rule was recognized and followed in Baham v. Faust, 333 So.2d 261 (La.App. 1st Cir. 1976).

We find, in this instance, that Tan-son made a good faith effort to cure the defaults. It submitted payment of the rentals and paid the taxes. That the rentals were not received timely was not due to Tanson’s fault. Although the taxes were not paid when due on December 31, 1975, we note that the lease provides no specific date for payment of taxes. We also note that Tanson stood ready to pay the taxes and did in fact make such payment with no loss to Lessor. Moreover, Tanson indicated willingness to make repairs and refrained from doing so only because Tanson could not get Lessor to specify the repairs which Lessor deemed in order. Under the circumstances of this case, we find no violation on Tanson’s part sufficient to warrant termination of the lease.

USE OP THE LEASED PREMISES

Tanson’s argument that Article 7 permits any lawful use of the premises is not supported by the lease provisions. Article 7 does not so state. It provides only that the premises shall not be used for any unlawful purpose. Riders C and D, mentioned hereinabove, reflect the intent of the parties to utilize the property as a shopping center. The record also reflects that from the outset, the premises have been devoted to use as a shopping center. We find that the trial judge correctly resolved this issue.

LIABILITY OF CPDC, S. F. REALTY COMPANY, WILBUR MARVIN AND KENNETH M. KURSON

Article 22 of the lease grants Lessee the right to assign or sub-let the premises in whole or in part. It also states that in the event of assignment of the whole, Lessee is relieved of all liability to Lessor provided: (1) Lessee is not in default at the time of assignment; (2) assignee assumes Lessee’s obligations under the lease; (3) an executed copy of the assignment, suitable for recording, has been delivered to Lessor; and (4) assignee is a responsible party and a good financial risk to Lessor.

The record does not support Lessor’s claim that these parties failed to comply with requirement (3) above. The record contains a letter from said parties to Lessor informing Lessor of assignment and that Assignor recorded the assignment. Under the circumstances, these parties cannot be held liable to Lessor.

LESSOR’S CLAIM FOR RENT DUE FROM DATE OF SUIT UNTIL TERMINATION OF THE LEASE

Article 18 of the lease provides that Lessor may, after expiration of the 30 day notice period, enter the premises “and take possession thereof, and bring suit for and collect any rents, or other charges which may have accrued up to the time of such re-entry, . . . ”. Upon filing suit, Lessor effectively re-entered the premises and thus deprived Tanson of use of the property. For this reason, the trial judge properly held Tanson liable for the $3,750.00 rental which accrued prior to suit.

TANSON’S RECONVENTIONAL DEMAND

This is basically a claim for alleged damages resulting from Tanson’s reputed constructive eviction by the filing of Lessor’s suit. It is charged that the suit deprived Tanson of effective use of the premises. The major proof offered in support of this claim relates to a proposed sub-lease between Tanson and the Optimist Club of Baton Rouge for the club’s use of the premises as the site of the club’s 1976 Spring Fair. In March, 1976, a tentative agreement was reached between Tanson and the club by which the club agreed to repair the parking area and make certain building repairs in return for use of the premises. Suit was not filed by Lessor until April 27, 1976. At the time of the negotiations between Tanson and the club, Tanson was in legal control of the premises. That Lessor refused its consent is a matter of no moment. Lessee confined its proof mainly to the Optimist Club incident and now requests a remand to allow further proof of this claim.

The law does not favor' piecemeal trial of lawsuits. Tanson has had its day in court. Exercising the discretion vested in us in matters of this nature, we decline the request for remand.

DECREE

IT IS ORDERED, ADJUDGED AND DECREED THAT: (1) The judgment of the trial court ordering cancellation of the lease is annulled, reversed and set aside and judgment rendered herein in favor of Tan-son decreeing the lease in full force and effect; (2) The judgment in favor of Lessor and against Tanson for delinquent rental in the sum of $3,750.00 due prior to institution of suit is affirmed; (3) The judgment in favor of Lessor against Tanson in the sum of $54,187.00 for repairs is reversed and set aside; (4) The judgment decreeing that the property was intended for shopping center usage and purposes is affirmed; (5) The judgment in favor of Lessor against CPDC, S. F. Realty Company, Wilbur Marvin and Kenneth M. Kurson is reversed and set aside; (6) The judgment in favor of CPDC, S. F. Realty Company, Wilbur Marvin and Kenneth M. Kurson on their third party demand against Tanson is reversed and set aside; and (7) The judgment rejecting Lessor’s claim for rental subsequent to filing suit is affirmed. Cost of these entire proceedings to be paid one-half by plaintiff-lessor and Tanson.

Affirmed in part, reversed' in part and rendered.


text:
    Sidney HINCHEN, Jr. v. FONTENOT CONSTRUCTION CO.
    No. 11927.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.

      Timothy R. Higgins, Hammond, for Sidney Kinchen, Jr., plaintiff-appellee.
    Kenneth E. Barnette, Baton Rouge, for Fontenot Const. Co., defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendants J. E. Fontenot General Contractor, Inc. (Employer) and Employer’s insurer, St. Paul Fire and Marine Insurance Company, (Appellants), appeal from judgment dismissing their exception of prescription and awarding plaintiff (Appellee) workmen’s compensation benefits after trial on the merits. We reverse and render judgment sustaining Appellants’ exception of prescription and dismissing Appellee’s claim with prejudice.

The facts are undisputed. Appellee was injured August 4,1972 when he fell from a carpenter’s scaffold in the course and scope of his employment by Employer. Employer corporation, whose address is Route 7, Box 615-B, is for all practical purposes owned by J. E. Fontenot, who runs the corporation from the stated location which is also his home address. St. Paul paid Appellee compensation from the date of the accident until April 25, 1973, on which date payments were terminated. Appellee never resumed work for Employer. On May 25, 1973, Appellants tendered a written offer of compromise to Appellee’s attorney in the sum of $4,000.00.

On April 8, 1974, Appellee instituted suit on his compensation claim against Fontenot Construction Company and its alleged insurer, Hartford Indemnity Company. Service on Fontenot Construction Company was requested to be made at 633 Oak Villa Boulevard, Baton Rouge, Louisiana, and on Hartford through the Secretary of State. Fontenot Construction is wholly owned by Emery J. Fontenot, who is no relation to J. E. Fontenot. Service of plaintiff’s petition was made on Emery J. Fontenot April 11, 1974. On May 11,1974, a letter bearing the signature of Emery J. Fontenot, on Fonten-ot’s letterhead, was sent to Appellee’s attorney, advising him that the citation was not for Fontenot Construction Company.

On May 1, 1975, Appellee amended his petition, substituting Employer and St. Paul as defendants. Domiciliary service was made on Employer on May 5,1975, and on St. Paul by service on the Secretary of State on that same date.

The record shows that J. E. Fontenot and Emery J. Fontenot are not related by blood or marriage. They have no business connection whatsoever. Their places of business are quite removed from each other. About 25 years ago, J. E. Fontenot was employed by Emery J. Fontenot as a carpenter for a short while, at which time Emery J. Fontenot operated under his individual name. Although these parties admittedly know each other, they maintain no social contact. Both testified that they had not seen or spoken with each other for some years prior to the filing of this suit. J. E. Fontenot also testified that he had no knowledge of the suit until domiciliary service was made on the hereinabove mentioned date.

Appellee relies upon Allstate Insurance Company v. Manemin, 280 So.2d 857 (La.App. 3d Cir. 1973) and Brooks v. Wiltz, 144 So.2d 413 (La.App. 4th Cir. 1962), in urging that service on Fontenot Construction Company and Hartford was tantamount to service upon J. E. Fontenot General Contractors, Inc. and St. Paul because of the similarity of names and also because Appellants tendered an offer of compromise.

La.R.S. 9:5801 provides that prescription is interrupted as to all parties made defendant by filing suit in a court of competent jurisdiction having proper venue. If the court lacks jurisdiction or is one of improper venue, prescription is interrupted as to the defendants served.

As to one not made party, prescription may be interrupted by service of process upon one with whom such unserved party is solidarily liable or who is closely associated with a named defendant or has such connexity with a named defendant that it may be presumed that the unserved party has notice of the action. Commercial Union Insurance Company v. Bringol, 262 So.2d 532 (La.App. 4th Cir. 1972).

The cases relied upon by Appellee are readily distinguishable. In McManemin, service on C. D. McManemin, owner of a vehicle involved in an accident, was held to interrupt prescription on McManemin’s major son, Doyle McManemin, who lived with his father and was driving the car at the time of the accident.

In Brooks, service was made on the twin brother of one who inflicted personal injuries on plaintiff. Both parties resided with their mother on whom domiciliary service was made. Within a week or so of service, the mother advised both parties of the filing of the action.

In this action, there is no solidary liability between the parties initially served and Appellants herein. While there is some similarity of corporate names involved, the record is clear beyond dispute that there was no connection between Employer and Fontenot Construction Company such that service upon the latter may be held to have interrupted prescription against the former. See Majesty v. Comet-Mercury-Ford Co., 296 So.2d 271 (La.1974).

It is ordered, adjudged and decreed that the judgment in favor of Appellee be and the same is hereby annulled, reversed and set aside and judgment rendered herein in favor of Appellants sustaining Appellant’s exception of prescription and dismissing Appellee’s action with prejudice.

Reversed and rendered.


text:
    Martha BRADLEY v. UNION NATIONAL LIFE INSURANCE COMPANY et al.
    No. 11933.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      W. Donald Cashio, New Orleans, of counsel for plaintiff-appellant Martha Bradley.
    F. Charles McMains, Jr., Baton Rouge, of counsel for defendant-appellee Union Nat. Life Ins. Co., et al.
    J. Louis Watkins, Jr., Houma, for third-party defendant Community Funeral Home.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing her claim against defendants, Union National Life Insurance Company (Union), and Community Funeral Home (Community), to recover the proceeds of two insurance policies on the life of Appellant’s deceased mother, Annie M. L. Bradley. Upon decedent’s demise, the value of the policies, totalling $1,124.00, was paid by Union directly to Community pursuant to assignment by Appellant, who asserts the invalidity of such assignment by reason of her minority at the time the assignment was executed. Union filed a third party demand against Community but Union has neither appealed nor answered Appellant’s appeal. The only issue before us is Appellant’s claim to the policy proceeds. We affirm upon finding Appellant liable for the debts of her mother’s succession because of Appellant’s tacit acceptance of the succession subsequent to Appellant attaining the age of majority.

Decedent died October 24, 1975. Her funeral was handled by Community at a total cost of $1,290.92. Union had issued three policies on decedent’s life; two payable to Appellant in the sum of $1,124.00, and one to Appellant’s stepfather, Benjamin Bradley, in the amount of $65.78. Appellant, who was born September 3,1958, was legally adopted by decedent and is decedent’s sole heir at law. On December 11, 1975, Appellant and her step-father assigned to Community all of their respective rights in Union’s policies. In addition to the $1,189.78 received by Community from Union, Community also received $700.00 from Winnfield Life Insurance Company. Community refunded Benjamin Bradley the overpayment of $598.86.

Decedent died possessed of movable property and possibly a one-half interest in a house. The movable property consisted of household effects totalling about three rooms of furniture, personal effects and clothing and some inexpensive jewelry.

Following her mother’s death, Appellant took possession and control of decedent’s movable effects. Appellant gave decedent’s clothing to decedent’s sisters and kept the furniture for herself. At the time of trial, Appellant was using the furniture and claimed it as her own. No succession proceedings were instituted concerning decedent’s estate.

In refutation of Appellant’s contention that the assignment was null because of Appellant’s incapacity, Appellees contend that Appellant may not recover because the assignment was pursuant to a natural obligation to pay decedent’s funeral expenses. Appellees also maintain that Appellant ratified the assignment following Appellant’s attaining majority. Appellees finally contend that payment was properly made pursuant to facility of payment provisions in the policies.

Appellant correctly maintains that the assignment was null because of her minority. La.C.C. Article 1785 provides that except in the instances therein specified, a minor lacks capacity to contract. The present case does not fall within the instances excepted. Article 1785 also provides that a minor may render his contracts valid by ratification, express or implied. It follows that Appellant’s assignment is null unless it has been ratified.

The record does not sustain Appellee’s contention that Appellant ratified the assignment following her majority. The only evidence before us concerning Appellant’s actions following her majority concerns Appellant’s dealing with the assets of decedent’s succession. While such testimony is pertinent to the issue of whether Appellant tacitly accepted the succession, it has no relevance whatsoever to the alleged ratification of the assignment.

We find no merit in Appellee’s contention that Appellant is barred from recovery because the funds were paid in discharge of a natural obligation, namely, defrayment of decedent’s succession.

La.C.C. Article 1759 provides that although a natural obligation cannot be enforced by legal action, no suit lies to recover what has been paid or given pursuant to a natural obligation and that a natural obligation is sufficient consideration for a new contract. This effect of barring of recovery under Article 1759 is limited to those instances where the payment sought to be recovered was made after the incapacity was terminated or cured. La.C.C. Article 1759; 6 Louisiana Civil Law Treatises; Obligations, S. Litvinoff, §§ 345-46, pp. 605-606. In this instance, the assignment was made during incapacity. Appellant’s recovery is not barred because the funds were paid pursuant to a natural obligation.

The facility of payment clause relied on by Appellees provides that if the policy is “payable to the estate of the Insured, or to a minor . . ., the Company may make payment to the Insured’s executors or administrators or to any relative by blood or connection by marriage of the insured who is deemed by the Company to be equitably entitled to payment”. This provision is inapplicable herein because the proceeds were not paid to a blood relative or succession representative, or connection by marriage to the Insured. In this case, payment was made to a funeral home.

La.C.C, Articles 988, 992-999, in effect, provide that one may tacitly accept a succession by exercising acts of ownership as distinguished from acts of preservation and administration over succession assets. See also Parish v. Minvielle, 217 So.2d 684 (La.App. 3rd Cir. 1969).

Tacit acceptance of a succession is determined in the light of the circumstances of each particular case. La.C.C. Article 993.

In determining whether a succession has been tacitly accepted, the intent of the person must be considered along with his actions. We have no hesitancy in concluding that Appellant has tacitly accepted her mother’s succession. Appellant herein took possession of decedent’s movable assets and exercised undisputed acts of ownership with respect thereto. Appellant disposed of decedent’s clothing as though it were Appellant’s own. Appellant has appropriated to her own use decedent’s furniture which Appellant frankly stated she considered as Appellant’s property. Appellant has never opened decedent’s succession.

The tacit acceptance by Appellant rendered Appellant personally liable for the debts of her mother’s succession, including funeral expenses. Sanders v. Sanders, 85 So.2d 61 (La.App. 1st Cir. 1956).

We are aware that the law accepts succession for minors with benefit of inventory. La.C.C. Articles 352 and 1977. In Succession of Hart, 52 La.Ann. 364, 27 So. 69 (1899), it was held that major heirs who accepted with benefit of inventory could nevertheless accept simply and unconditionally. We see no reason why the same rule should not apply to a minor accepting of his own volition after attaining majority. We deem this position proper in view of La.C.C. Article 1031 which allows acceptance of a succession despite prior renunciation.

Having accepted the succession unconditionally, subsequent to attaining majority, Appellant is liable for funeral expenses in the sum of $1,290.92. This obligation, of course, is due to Community Funeral Home. However, Appellant seeks recovery of the proceeds of the insurance policy from Union. In effect, Union has paid the expenses for Appellant. La.C.C. Article 2134 provides that:

“An obligation may be discharged by any person concerned in it, such as a coobligor or a surety.
“The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.”

In accordance with the reasoning followed in Standard Motor Car Company v. State Farm Mutual Automobile Insurance Company, 97 So.2d 435 (La.App. 1st Cir. 1957), we find that Union is entitled to reimbursement, although Union is clearly not subrogated to the rights of Community.

Since plaintiff owes the debt at this time, the payment by the insurance company at a time prior to the time of Appellant’s acceptance of the succession should not alter Union’s right to reimbursement. Consequently, this right to reimbursement and plaintiff’s right to payment of the proceeds of the insurance policy are co-existing and automatic compensation under La.C.C. Article 2208 takes place. The debt owed by Appellant to Community exceeds the amount of insurance proceeds paid by Union to Community. Under the circumstances, plaintiff is not entitled to any recovery.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


author: LANDRY, Judge. LOTTINGER, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lloyd Robert CONSTANT et al.
    No. 11940.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Concurring and Dissenting Opinions May 10, 1978.
    Rehearings Denied June 12, 1978.

      Johnie E. Branch, Jr., and Bryan Miller, Executive Asst. Gen. Counsel, Baton Rouge, for plaintiff and appellant.
    David Landry, C/O Deramee & Deramee, Thibodaux, for defendants and appellees.
   LANDRY, Judge.

The appeal by plaintiff (Department) in this expropriation proceeding presents the primary question of whether Louisiana Constitution, 1974, Article 1, Section 4, requires an expropriating authority to restore a landowner’s business facilities to the condition existing prior to taking so that compensation may be made to the owner “to the full extent of his loss”. The trial court found that the constitutional provision does so require. We agree in principle but reduce the amount of the award granted defendants (Owner).

On June 23, 1975, the Department instituted proceedings, pursuant to the “Quick Taking Statute”, to expropriate three parcels of land belonging to Owner and required for construction of a new bridge and highway approaches for the State Route 307 bridge crossing of Bayou Boeuf. An initial deposit of $33,835.00 was increased to $34,594.00 on March 9, 1977.

The taking involves two of Owner’s tracts situated in the northwest quadrant of the crossing. The first tract contains 1.56 acres fronting on the west side of Bayou Boeuf, parallel to and abutting Highway 307. This parcel extends from the bayou westerly to a road which runs northerly from Highway 307 and then curves and runs in a generally easterly direction toward the bayou, bounding the tract on the north. Owner had converted this site into a marina of sorts by constructing a boat slip from Bayou Boeuf to a point approximately % the depth of the tract and parallel to Highway 307. Along the south side of the slip, Owner constructed a bulkhead 110 feet long. The area between the bulkhead and Highway 307 was filled and topped with shell, thus providing access to the slip from Highway 307. Near the bayou, Owner constructed a boat launching ramp for small vessels. To service vessels, Owner erected a small boat shed and a gasoline pump to which electricity was supplied by a 70 foot buried cable. The marina area is characterized as “dry land”. The western end of the tract and the portion north of the boat slip is low and marshy and is considered “wet land”'. Prom this tract, the Department took Parcel P-2-6 containing .56 acres composed largely of dry land, and virtually all of the marina area including the bulkhead-ing, a small segment from the south side of the boat slip, the launching ramp, boat shed and electric supply line. The taking also included the entire western end of the tract, composed of wet land. There remains of this tract the unaffected portion of the boat slip and all of the wet land north of the strip, comprising approximately one acre in all. This tract is unique in that it is situated on the west side of the bridge and was used as a means of loading heavy oil field rigs and equipment on barges for transportation, via Bayou Boeuf, to waterways west of the Bridge. Because of the height of the bridge, such equipment could not pass beneath the bridge on barges from any marina on the east side of the bridge.

The second tract contains 3.2 acres lying west of the first tract and also abutting Highway 307. It is separated from the first tract by the aforementioned highway running north from Highway 307. Two parcels were taken from this tract, namely, P-2-7 and P-2-7-D-1. Parcel P-2-7 contains .230 acres taken in full ownership; Parcel P-2-7-D-1 contains .002 acres obtained for a drainage servitude.

It is stipulated that Owner is due $1,323.00 for Parcel P-2-7 and $165.00 for fencing thereon. The trial court awarded severance damages of $235.75 for a long narrow remainder of P-2-7. On appeal, the Department disputes this award and Owner seeks an increase therein. It is also stipulated that the value of the servitude area comprising P-2-7-D-1 is $12.00, and that P-2-6, which comprises both dry and wet lands, is valued at $26,537.00 without the improvements thereon. All experts agree that the dry land is valued at $65,-000.00 per acre and the wet lands at $6,000.00 per acre. The experts further agree that the value of the remaining wet land portion of P-2-6 is the same after taking as before, namely, $6,000.00 per acre.

The trial judge found that the bulkhead-ing had an estimated 50 year life, of which 60% remained at taking. The Department’s expert, John Dugan, set replacement cost of the bulkheading at $120.00 a linear foot, which factor he depreciated 50%, assuming this facility to be 25 years old and to have a 50 year life. Dugan gave no value to the 8 isolated pilings because of their age and his conclusion that they served no useful purpose. Dugan attributed no value to the shell surface of the marine area because he considered this factor in fixing land value. The boat shed was valued by Dugan at $100.00. Dugan found no severance damage to P-2-6.

Owner’s expert, Irvin Epplington, did not visit the scene until most of the improvements had been removed. Based on replacement costs obtained from contractors, Epplington valued the bulkheading at $175.00 per linear foot. Using a 50 year life basis and depreciating same 40%, he valued the bulkheading at $11,500.00. He valued the shed and conduit at $100.00 and $270.00, respectively, predicated upon information given him about these facilities. Finding a replacement cost of $4,000.00 for the isolated pilings, Epplington valued these items at $2,400.00 utilizing a depreciation factor of 40%. A value of 10 cents per square foot was given by Epplington to the shell surfacing, or $780.00, in addition to his land value of $26,537.00. Epplington found that the use of the remaining .28 acres slip area of Parcel P-2-6 was diminished two-thirds because heavy machinery could no longer be brought by truck to the slip for transportation aboard barges.

The Department’s expert, Lloyd Rock-hold, estimated the cost of replacing the bulkheading in a theoretical reconstruction of the marina. He determined replacement cost to be $148.00 per linear foot. The trial court accepted Rockhold’s cost estimate as the most reliable in fixing the award for the bulkheading.

Claiming entitlement to restoration of the marina to substantially its former condition, Owner offered expert testimony as to the cost of reconstructing 210 feet of bulkheading with a 40 foot wing on its west end, on the north side of the boat slip. Behind the proposed bulkheading the remaining wet land area would be filled with dirt and topped with shell to provide a solid land fill affording truck access to the slip. A new boat launching ramp would also be required. Owner’s expert, John Hoffman, estimated the cost of such curative work at $103,075.00, in 1975, and $113,260.00 at the time of trial in March, 1977. Rockhold estimated that the work required to convert the remainder of P-2-6 into a marina would be $62,216.00.

The trial court awarded the following for P-2-6: agreed value of land taken, $26,-537.00; boat shed, $100.00; electrical conduit, $270.00; and $480.00 for the 8 isolated pilings (based on Rockhold’s estimated replacement cost of $2.50 per linear foot for 8 pilings 40 feet in length, a total value of $800.00, depreciated 40%). In this manner, the trial judge awarded $27,387.00 for the land and improvements of Parcel P-2-6 that were taken.

The trial judge interpreted La.Const.1974, Article 1, Section 4, to mean that the owner of expropriated property must be paid not only for land taken and severance damages to his remainder, but also must be compensated to the full extent of his loss; that is, be made whole and absolved from any economic loss whatever. This, according to the trial judge, obligates the Department to restore the marina. On this premise, the trial judge accepted Rockhold’s estimated marina replacement cost, depreciated said amount 40% to obviate Owner’s unjust enrichment, and awarded Owner additional damages of $37,329.00 as cost of cure. Additionally, the trial judge noted that reconstruction would entail “taking” the remaining wet land area of Parcel P-2-6 valued at $6,000.00 and allowed this amount as further damages.

Concerning P-2-7, the trial judge awarded the value of land and improvements, to which he added severance damages of $235.75, making a total award of $1,723.75 for this parcel. Awarding $12.00 (the stipulated value of P-2-7-D-1), the trial judge made a total award of $72,451.75, from which he deducted the deposit of $34,594.00, and rendered judgment in favor of Owner in the sum of $37,857.75.

All appraisers agreed that the value of the entire parcel from which P-2-6 was taken, including the marina, improvements and remaining wet lands was $53,000.00 before the taking. Epplington explained that in his opinion the value of the land and marina could not be determined on a market data approach because of the uniqueness of the tract and the absence of sales of similar properties from which market value could be calculated. He also stated that even if some $109,000.00 were expended to convert the remainder into a new marina as estimated by Hoffman, the completed reconversion would probably have a market value of approximately $53,000.00. He justified this expenditure on the ground it would take this amount to place Owner in his original position.

The Department contends that the trial judge erred in awarding replacement value of the marina; fixing an excessive value for the bulkheading; and awarding excessive attorney’s fees. Owner has answered the appeal, seeking an increase in the award of cost of cure to $65,445.00, predicated on Hoffman’s estimate of $109,975.00, depreciated 40%; and, an increase in attorney’s fees for having to answer and resist the Department’s appeal. Owner also seeks severance damages of $554.00 to the remaining slip area of P-2-6.

The trial judge rejected Owner’s claim for severance damages to the remaining slip area of P-2-6 because of lack of proof of this item. We concur in this finding because the record is barren of evidence to show income produced by the marina operation. Moreover, Owner made absolutely no attempt to establish the extent of alleged business losses.

The remainder of P-2-7 consists of a long narrow strip about 30 feet wide on one end and 9 feet wide on the other. Severance damages to this remainder are claimed based on Epplington’s testimony that the tract was worth 20 cents per square foot prior to taking and 10 cents per square foot thereafter. Epplington thus depreciated the 3484 square foot remainder $348.00. The trial judge obviously rejected this contention and accepted Dugan’s opinion that this remainder was undiminished in value in that it could be readily leased or sold as a campsite in this particular area where any kind of campsite would bring a premium price because of the demand for campsites by sportsmen.

La.Const.1974, Article 1, Section 4, pertinently states:

“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes with just compensation paid to the owner or into court for his benefit. ... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. . . . ”

We find the following legislation is also pertinent to the issue at hand:

La.R.S. 19:1, as amended by Act 11, Extra Sess. 1974, which provides:

“Property defined.
As used in this part (expropriation), the term ‘property’ means immovable property, including servitudes and other rights in or to immovable property.”

La.R.S. 48:450, B, (2), as amended by Act 30, Ex.Sess.1974, provides that where a portion of a tract is expropriated, the owner may seek trial on the issue of the measure of compensation due provided, inter alia, that he answers the suit and reasonably itemizes his claim for property taken and severance damages claimed.

La.R.S. 48:453, C and E, as amended by Act 391 of 1976 provide respectively that in an expropriation proceeding, the owner shall be compensated to the full extent of his loss and that reasonable attorney’s fees are recoverable by an owner in the amount of 25% of the excess of an award over the amount deposited in court by the expropriating authority.

We note also the decision rendered by a three judge panel of this court in Louisiana Power & Light Company v. Caldwell, 353 So.2d 371 (1977), in which it was concluded that La.Const.1974, Article 1, Section 4 made no change in the long established law of this state that compensation for property expropriated for public purposes is limited to market value of property taken and severance damages to the remainder, if any.

We are cognizant too, of State of Louisiana, Through Department of Highways v. Champagne, 356 So.2d 1136 (La.App. 3rd Cir., 1978), which held that La.Const. Article 1, Section 4, has changed our historical concept of compensation due the owner of expropriated property. In essence, our brothers of the Third Circuit held that the new constitutional provision has broadened the measure of damages in expropriation cases by requiring that an owner not only be paid the market value of property taken and severance damages to his remainder, but also that such an owner be put in as good a position pecuniarily as he would have been had his property not been taken.

The Department urges that the herein-above mentioned statutes indicate clear legislative intent to limit recovery in compensation cases to market value of land taken and severance damages, notwithstanding La.Const.1974, Article 1, Section 4. The Department also urges that La.R.S. 19:1 means that in an expropriation proceeding, only damages to immovable property may be recovered and that, if any other damages occur, such as loss of business, cost of moving and similar expenses or losses, they must be recovered in a separate proceeding, if at all.

Owner maintains, however, that present Constitutional Article 1, Section 4 was intended to enlarge the scope of recovery by an owner whose property is expropriated for public purposes. We find that Owner’s position is correct.

We have considered in detail the delegates’ discussion of amendments to proposed Article 1, Section 4, as submitted to the Constitutional Convention by the committee which drafted the provision. Numerous amendments were offered when the Committee provision came before the convention for adoption; virtually all proffered amendments were rejected and the committee’s submitted version adopted with no significant change. The arguments posed in opposition to proposed amendments make it clear beyond doubt that the intent of the submitted Article was to enlarge, liberalize, and expand the scope of the “just and adequate compensation” measure of damages contained in the Constitution of 1921, by inclusion of the phrase “the owner shall be compensated to the full extent of his loss” so that his award for property value and severance damages would not be eroded to the extent of such expenses incurred by him in litigating the damages due.

The debate and discussion notes that the new constitutional provision was patterned upon a similar provision in the constitutions of Montana and other states.

In this regard, we note the committee comment appearing in the Records of the Louisiana Constitutional Convention of 1973, Convention Transcript, Volume I, 11th day proceedings, July 6, 1973, page 86, to the effect that “The term ‘full extent of the loss’ is intended to permit an owner whose property has been taken to remain in equivalent financial circumstances after the taking”.

The explanation of Delegate Lanier, when the article was before the convention for final adoption, indicates that the provision “full extent of the loss” was meant to cover elements of damage formerly considered damnum absque injuria, such as costs of removal and similar costs. Records of the Louisiana Constitutional Convention of 1973, Convention Transcript VII 46th days proceedings, September 13,1973, pages 1240-1242.

In an article entitled The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. Law Rev. 1 (1974), Professor Lee Hargrave, in considering the effect of La.Const.1974, Article 1, Section 4, observed:

“The new formula comes from the 1972 Montana Constitution, and was stated by the committee in comments as ‘intended to permit the owner whose property has been taken to remain in equivalent financial circumstances after the taking’.” (35 La. Law Rev. at 15)

Professor Hargrave aptly noted:

“No doubt this provision will spawn much litigation, but it is clear that the level of expropriation awards must be expanded to include moving expenses, business losses because of change of location and compensation for some intangible losses not covered under prior law.”

We find no merit in the Department’s argument that the hereinabove mentioned legislation adopted subsequent to the effective date of La.Const.1974, Article 1, Section 4, shows intent to retain the former measure of compensation due for expropriated property. In determining constitutionality, legislation may be persuasive but is never controlling upon the courts. The function of interpreting the constitution and laws of the state, in final analysis, rests exclusively upon the courts. La.Const.1974, Article 5, Section 1.

In view of the language employed in Article 1, Section 4, we conclude that the Article broadens the scope and concept of the measure of damages recoverable in expropriation cases. The committee’s explanation of the Article submitted to the full convention and the debate on the proposed amendments thereto, make clear the intent to allow recovery for items and elements of damages not previously compensable. We also find that the provision envisions recovery for business losses, moving expenses and other intangibles in a proper case and upon adequate proof of such losses. We deem it elementary, however, that recovery for such items must depend upon the facts, circumstances and proof offered in each individual case. We reverse Louisiana Power and Light Company v. Caldwell, above, insofar as it holds contrary to the views herein expressed.

Owner produced no proof of market value based on sales of comparable property, claiming that no such comparables existed. Significantly, Owner made no effort to prove the value of the business and property from an income approach. Presumably, Owner had records to establish such value. Owner was content to offer proof only of reconstruction cost at a particular location. It could well be that a similar business could be relocated elsewhere at less cost.

In view of the conclusions hereinafter reached, we pretermit consideration of the Department’s claim that the trial judge’s award of $480.00 for the isolated pilings and $270.00 for the electrical conduit on P-2-6 was excessive. We also pretermit Owner’s claim that the award for the piling should be increased.

We find that the record amply supports the trial judge’s award of $235.75 as severance damages to Parcel P-2-7. For this reason, we decline to either eliminate this award as requested by the Department or increase it as urged by Owner.

The trial judge awarded Owner a total of $70,716.00 for the taking of P-2-6, itemized as follows: Agreed value of land, $26,-537.00, depreciated replacement cost of new facility, $37,329.00 (based on Hoffman’s estimates); boat shed, $100.00; electrical conduit, $270.00; isolated pilings, $480.00; and, value of remaining land used for replacement, $6,000.00. We find this award constitutes an excess.

We find that Owner is entitled to recover for the loss of his marina operation in order to obtain compensation to the full extent of his loss. We find, however, that such loss cannot reasonably exceed the value of the marina, less the value of the remaining property. It has been noted that this entire tract, with all improvements thereon, was valued at $53,000.00 before the taking and that the remainder has an agreed value of $6,000.00. We find that Owner is therefore entitled to damages in the sum of $47,000.00 for the taking of P-2-6. The trial court’s award would have amounted to $17,716.00 more than the value of the entire property before the taking, notwithstanding the remainder value of $6,000.00. We find that our award will place Owner in the same pecuniary position he enjoyed prior to the taking. We also find that in this case, any award greater than that granted would constitute an economic waste. We deem it inappropriate to require payment of damages greater than the established value of property utilized as a going business in the absence of proof of business losses. Since it is agreed that P-2-6 has a value of $26,537.00, Owner is entitled to the additional sum of $20,463.00, the difference between the value of the part taken and the $47,000.00 value of the tract.

We affirm the trial judge’s award of $1,723.00 for Parcel P-2-7 consisting of $1,323.00 for land taken; severance damages of $235.00; and $165.00 for improvements. We also affirm the award of $12.00 for Parcel P-2-7-D-1.

We thus fix Owner’s award at $48,735.00. Since the deposit was $34,594.00, attorney’s fees are deducted to 25% of $14,141.00, the difference between the deposit and the total award. La.R.S. 48:453(E), as amended. Interest is due Owner in the sum of $90.10 for $790.00 not deposited until March 7, 1977. Owner is also due interest on $13,-346.00 at 7% from June 23, 1975, and all costs of these proceedings.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby amended to reduce the total award to Owner to the sum of $48,735.00, and judgment rendered herein in favor of Owner in the additional sum of $14,141.00, together with $90.10 interest and additional interest at 7% per annum on $13,346.00 from June 23, 1975, until paid and the further sum of $3,535.25 as attorney’s fees, and all costs of these proceedings.

It is further ordered, adjudged and decreed that except as herein amended, the judgment of the trial court is affirmed.

Amended and affirmed. •

LOTTINGER, Judge,

concurring and dissenting.

I concur in the conclusion reached by the majority of this Court that Article 1, Section 4, La.Const.1974 broadened the scope and the concept of the measure of damages recoverable in expropriation cases vis-a-vis the 1921 Louisiana Constitution.

However, I dissent from the majority’s ultimate conclusion that the most the landowner-defendant can receive in compensation is the value of the property at the time of the taking, and that any greater award would amount to an economic waste. The majority’s conclusion only gives lip service to the intentions of the delegates to the convention.

I am convinced that the delegates to the Constitutional Convention intended that the defendant-landowner not suffer any financial loss or out of pocket expenses because of the expropriation of his property.

It was not the intention of the delegates in subordinating the rights of private ownership of property to the paramount right of the state to expropriate for the public good that the individual be forced to suffer financially. Stated another way, with the right of expropriation goes the responsibility and obligation to made the individual whole. For example, if land with a twenty year old building is expropriated, the landowner should receive the fair market value of the land plus the reconstruction cost of the building, without deducting depreciation, plus any additional proven expenses as compensation. Otherwise, if the landowner receives any less, it will be necessary for him to pay these expenses out of his own pocket, and this I believe the delegates did not intend.

In the instant case, the landowner should receive the value for all land taken, excluding the improvements, and as compensation for the improvements, he should receive the replacement or reconstruction cost thereof, without regard to depreciation, as of the date of the taking.

The majority would allow as to P-2-6 an award of $47,000.00. They compute this figure by reasoning that the entire tract was valued at $53,000.00 before the taking. The land without improvements was valued at $6,000.00 per acre and since P-2-6 contained 1.56 acres, but only .56 acres was being taken, they deducted $6,000.00 from the total valuation.

Thus, the majority allows $47,000.00 for the taking of the marina, whereas the Department’s own expert testified that it would cost $62,216.00 to reconstruct the marina.' For the defendant to reconstruct his marina, he must spend $15,216.00 out of pocket money in addition to the expropriation award. This certainly cannot be what the delegates envisioned by “to the full extent of his loss”.

It is apparent in carefully analyzing the trial judge’s award that there is some duplication in the award. As to P-2-6, the trial judge awarded $26,537.00 as the agreed value of the land taken. This value presumably includes the fill and bulkheading. However, after making this award for this .56 acres including fill and bulkheading, the trial judge then awarded $37,329.00 as the depreciated replacement cost of the marina based on figures of the Department’s expert. This last figure would include cost of bulkheading and fill, thus a duplication. Included in the $26,537.00 award is also the value for the unimproved land, i. e., .56 acres worth $3,360.00. Additionally, after paying for the land taken, the trial judge awarded $6,000.00 for the owner’s land on which the new facility would be built. This should not be allowed. The proper award for P-2-6 is .56 acres at $3,360.00; a boat shed at $100.00; electrical conduit at $270.00; eight isolated pilings at $800.00; and reconstruction of marina based on the Departments figures at $62,216.00; or a total for P-2-6 of $66,746.00.

I find no error in the award of $1,735.75 for P-2-7 and P-2-7-D-1.

Therefore, the total award to the defendant-landowner is $68,481.75 and the attorney fees should be reduced to 25 per cent of $33,887.75, the difference between $68,-481.75 and the amount of the deposit, $34,-594.00.


text:
    In the Matter of the Succession of Ted F. DUNHAM, Sr.
    No. 12021.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    J. Huntington Odom, Baton Rouge, of counsel, for Executrix-appellee Katharine O. Dunham.
    Thomas H. Benton, Baton Rouge, of counsel, for appellant Richard E. Dunham, Sr.
    Rosemary Williams, Baton Rouge, for Richard E. Dunham.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Appellee, Katharine Oldham Dunham, testamentary executrix of the Succession of Ted F. Dunham, Sr., has moved for dismissal of the appeal taken herein by Richard Dunham (Appellant), son of decedent, from judgment dismissing Appellant’s action for a preliminary injunction seeking to prevent Appellee from transferring certain corporate stock owned by decedent’s succession. The motion to dismiss is predicated upon the alleged mootness of Appellant’s claim since only a devolutive appeal was taken by Appellant and the sale of the stock has since been perfected. We dismiss the appeal as moot.

As testamentary executrix, Appellee petitioned the trial court for authority to sell 394 shares of stock in Anderson-Dunham, Inc., a closed corporation whose stock is owned entirely by Appellee and decedent’s estate. Alleging the need to raise cash funds to pay succession debts and expenses, Appellee proposed that 31.4% of the succession’s stock in Anderson-Dunham be redeemed by the corporation for 105% of book value, a total of $598,545.10.

Appellant opposed the suggested transfer on the grounds that: (1) the market value of the shares is much greater than the book value; (2) the proposed sale is an attempt by Appellee to shift control of the corporation by the transfer of shares owned by the succession which are the subject of a testamentary trust, contradictory to Appellee’s duties as testamentary trustee of 8 separate trusts established by decedent’s will; (3) the sale at a reduced price is violative of Appellee’s fiduciary duty as trustee of the 8 trusts and also violative of Appellee’s fiduciary duty in that it will benefit Appellee to the detriment of the heirs; and (4) other succession assets are available for sale to pay debts at more advantageous prices and with less financial detriment to the heirs.

The judgment rejecting Appellant’s request for a preliminary injunction was signed August 8,1977. A timely motion for new trial was denied August 19, 1977, and notice thereof sent on August 22, 1977. Appellant was granted a devolutive appeal on August 30,1977. The judgment became executory September 21, 1977. La.C.C.P. Article 2252. The stock was sold February 27, 1978.

Our jurisprudence establishes that if an appellate court cannot render judgment which satisfies Appellant’s demands, because the action of the trial court cannot be undone, the appeal should be dismissed as moot. Succession of Scie, 240 So.2d 583 (La.App. 4th Cir. 1970); Succession of Favalora, 169 So.2d 197 (La.App. 4th Cir. 1964).

State v. Mutual Investment Co., Inc., 214 La. 356, 37 So.2d 817 (1948) and Pettingill et al v. Hills, Inc., 199 La. 557, 6 So.2d 660 (1942) both hold that when a sale has taken place and cannot be annulled on appeal, the appeal should be dismissed. In Pettingill, a partition sale sought to be avoided had already been executed and the proceeds of the sale distributed when the devolutive appeal was taken. In Mutual Investment, a receiver petitioned for authority to sell, at private sale, two vacant lots, which permission was granted without opposition. An order for devolutive appeal was taken after the sale was consummated. Appellant seeks to distinguish Pettingill and Mutual Investment on the ground that in those cases the sales were consummated before a devolutive appeal was taken, whereas in this instance, the appeal preceded the sale.

The time of taking the appeal is immaterial. A devolutive appeal does not suspend the effect of a judgment. In this instance, the sale was made after the judgment became executory. Under the circumstances, there was no impediment to the sale. La.C.C.P. Article 2252.

Appellant maintains that the appeal should not be dismissed because issues other than the right to injunctive relief are involved. It is contended that the sale could be nullified, or that at least it should be decided whether Appellee has breached her fiduciary duty as succession executrix or trustee, as alleged.

These issues, however, are not properly before us since Appellant has sought relief only in the form of injunction to prevent the proposed sale. Appellant has not sought removal of Appellee as either executrix or trustee.

Relying upon Bordelon v. Bordelon, 180 So.2d 855 (La.App. 3rd Cir. 1965) and La.C.C.P. Article 2164, Appellant suggests that we may consider the alleged breaches of fiduciary responsibility because we are permitted to render any judgment which is just, legal and proper on the record on appeal. We note, however, that Bordelon, above, was an action specifically to annul a sale and not an action for an injunction.

The corporation which purchased the stock is not a party to these proceedings. No judgment, therefore, may be rendered herein affecting the rights of said purchaser. We find no merit in Appellant’s suggestion that said corporation is in effect before the court. So far as the record shows in this instance, Appellee is not the alter ego of the corporation; neither has the corporate veil been pierced.

The appeal is dismissed as moot with full reservation of Appellant’s rights to proceed against the Appellee and/or Anderson-Dun-ham, Inc., to annul the sale of stock or against Appellee for alleged breach of Ap-pellee’s fiduciary duty as trustee of testamentary executrix of decedent’s succession.

Appeal dismissed.