text:
    Gerald DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. LL-322.
    District Court of Appeal of Florida, First District.
    April 19, 1979.

      James G. Etheredge, Fort Walton Beach, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MASON, ERNEST E. (Retired Circuit Judge), Associate Judge.

The appellant Donaldson appeals a judgment and sentence rendered and imposed upon a jury verdict finding him guilty of committing an unlawful battery by the use of a deadly weapon, in violation of Florida Statute 784.045(1).

The facts are as follows:

Appellant is married to Maria Donaldson. On the evening of February 1, 1978, Donaldson and his wife got into an argument in a public bowling alley and a physical fight occurred which continued after the parties returned to their home. Thomas Michael Brown, who is married to Maria’s sister, received a call at approximately midnight which consisted of “screaming and hollering”. Brown and his wife then went to the Donaldson home where they discovered Maria was injured. Maria was taken to a hospital and treated and then remained with the Browns. A warrant was issued against Donaldson and he was arrested and held overnight. Upon being released from jail, Donaldson attempted to contact Maria about the keys to their auto. He talked with Brown over the phone and an invitation to “fight it out” was issued but no fight occurred. Maria, who was in the process of obtaining a divorce from Donaldson, obtained a court order giving her temporary possession of the auto owned by the Donaldsons. Donaldson had taken the car to his uncle’s and chained it to a post. Brown assisted Maria in removing the chain and obtaining possession of the auto. On the evening of February 5, 1978, Maria and Donaldson agreed to go to a lounge and “talk things over”. Maria testified that during that evening Donaldson had quite a bit to drink and threatened to get even with Brown for taking the auto. At the trial appellant’s counsel strenuously objected to this conversation between defendant and his wife on the ground that such conversation was a privileged communication. On the morning of February 6, Donaldson, in a conversation with his father-in-law also threatened to get Brown. The next morning Brown stopped by the office of Donaldson and his brother, Johnny Donaldson, in order to talk things over. Brown followed Johnny Donaldson in order to locate the job site where Donaldson was working and then Brown went to work. He returned several hours later to talk to Donaldson. (One of his employees, Thomas Turner, was with him.) Turner testified that as he and Brown approached, Donaldson turned and said “Now I don’t have to look for you, Brown”, and then struck Brown with a carpenter’s level. Subsequently, both Johnny Donaldson and Jimmy Berditt, an employee of the Donaldsons, became involved in the fight. Several blows were delivered to Brown before he managed to free himself and leave. As a result of this incident, Donaldson was charged with aggravated battery. At the trial, Donaldson claimed self-defense. His estranged wife, Maria, was called as a rebuttal witness and she testified that she heard Donaldson threaten the life of Brown the night she went to the lounge with him. She also testified that Donaldson had threatened and beaten her. Defense counsel objected to her testimony but his objection was overruled.

The first point on appeal is that the trial court erred by allowing appellant’s wife to testify concerning communications she had with him prior to the incident complained of and prior to the trial of the cause. We do not think that this point is well taken for although confidential communications between husband and wife are privileged, the mere admission of such communications at trial is not reversible error unless there is a showing that but for the admission of such evidence a different result would have been reached at the trial. Cornelius v. State, 49 So.2d 332 (Fla.1950). There was other ample evidence in the record substantiating the fact that the appellant had threatened to get even with the victim Brown for Brown’s taking of the automobile, including appellant’s own admission to having threatened to “get Brown”. Furthermore, the evidence is clear that the appellant was the aggressor during the fight resulting in the battery upon Brown and the evidence was ample, absent his wife’s testimony concerning her conversation with him, to disprove appellant’s claim of self-defense. His wife’s testimony in that respect was merely cumulative and as such is not grounds for reversal on appeal when there is other competent substantial evidence in the record sufficient to sustain the verdict of guilt. Montalvo v. State, 154 So.2d 713 (Fla. 3rd DCA 1963); Urga v. State, 155 So.2d 719 (Fla. 2nd DCA 1963).

Appellant’s Points Two and Three are based upon the charge that the trial court erred in admitting evidence to the effect that appellant had beaten his wife on occasions prior to the trial and in permitting the introduction of testimony in rebuttal by the appellant’s wife to the effect that he had regularly had problems with his wife and that he had on several occasions threatened to kill her and had beaten her.

We reverse on Points Two and Three.

First, as to Point Two, it was error for the court to admit evidence that the appellant had beaten his wife on occasions prior to the trial. The evident purpose in the offering of such evidence was to show guilt of the crime of assault with which appellant was charged by showing defendant’s propensity to commit violent acts. At no point in the defense’s case did he place his character into evidence and the general rule in this State is that in criminal cases the State may not introduce evidence attacking the character of the accused unless he has first placed his character into issue by introducing evidence of his good character. Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965); Jordan v. State, 171 So.2d 418 (Fla. 1st DCA 1965). The State contends in connection with this point that it is not properly before this court because no timely objection was made by appellant at the time of the offer of such evidence. Our examination of the record discloses that appellant’s attorney did object to this character of evidence as being immaterial and irrelevant. It is true that he did not object at the time of each and every proffer of such testimony regarding fights and problems between appellant and his wife but he did offer a general objection to the admission of such testimony and was overruled by the court. Sensing the trial court’s view that such character of evidence was proper, defense counsel properly concluded that constant objection to the testimony each time offered would be useless in that he would get the same result from the trial court, and would thereby accentuate by constant and repeated objections the evidence to which he was objecting. Considering all of the circumstances surrounding the proffer of this type of evidence during the trial of this cause, we conclude that appellant has preserved for review an objection to such testimony and that it was not necessary for him to continuously object to every question whose purpose was to illicit the objectionable testimony.

Second, as to Point Three, it involves the appellant’s objection to the testimony of his wife concerning her difficulties with her husband including his beating of her and his threats to kill her, as not being proper rebuttal testimony and on the ground that the admission of same constituted an “over kill”, highly prejudicial to appellant, and which served the purpose of inflaming the jury against appellant.

It is important to note in this regard that the state did not elect to use the wife as a witness on direct but withheld her testimony until the final stage of the trial. We recognize the principle that the trial judge may in the exercise of sound discretion allow proper rebuttal evidence, even if it appears to be cumulative. Williamson v. State, 92 Fla. 980, 111 So. 124 (1926). But in this case the testimony of the wife on rebuttal as to the problems that she had with appellant was not proper to rebut the appellant’s character for violence, inasmuch as he had never put his good character or reputation for nonviolence into evidence. The alleged purpose for the state’s introduction of this testimony of the wife by way of rebuttal was to show that he had been drinking on the night before the incident in question and to show that he regularly had problems with his wife. These facts were not denied by the defendant in the presentation of his case, and thus this testimony of the wife could not be considered as proper rebuttal testimony. Our review of the record fails to disclose that the defendant put his character or reputation for nonviolence into evidence, either by his own testimony or that of any witness in his behalf.

It is our view that the purpose and effect of this testimony by way of rebuttal was to poison the minds of the jury against the appellant, as a “last shot”, so to speak. This court has held in Reyes v. State, 253 So.2d 907 (Fla. 1st DCA 1971), that this sort of tactic on the part of the state serves to spotlight unrelated past activities on the part of the appellant as a last impression, making it difficult to envision how the jury could possibly not have been influenced by such inadmissible evidence. We agree that this observation of our former Brother Rawls in Reyes is particularly applicable to the facts in this case. As Judge Rawls aptly observed “a citizen accused of committing a crime, no matter how heinous or reprehensible it may be in the eyes of society, is entitled to be informed as to the nature of the charge against him and afforded the opportunity to prepare his defense prior to being put to trial.” Such was not done in the instant cause for in our view the trial, by the admission of this testimony of the wife, focused on the character and propensity of appellant to engage in criminal activities which had not previously been an issue in the case.

We therefore find it our duty to reverse. We do so and remand the cause for new trial.

MILLS, Acting C. J., and ERVIN, J., concur.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Charles Thomas BASHLOR, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. HH-409.
    District Court of Appeal, of Florida, First District.
    Aug. 10, 1978.

      Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   ON PETITION FOR REHEARING

SMITH, Judge.

In 1951, when he was sixteen years old, Charles Bashlor was convicted of murder in the first degree and was sentenced to life imprisonment by the Circuit Court of Duval County. Bashlor did not appeal. He remains in prison today. His petition for writ of habeas corpus alleges that he lost his right to ordinary appellate review because the trial judge improperly denied or ignored his request for appointed counsel to take an appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Bashlor was represented at trial by two volunteer lawyers. Bashlor alleges that after his conviction he advised his attorneys that he wished to appeal, but they replied that they could do nothing more for him. Bashlor alleges he then wrote the trial judge that he wished to appeal and requested that counsel be appointed. The judge replied that he should get in touch with his trial counsel. Bashlor alleges he then wrote back to the judge, informing him that trial counsel had refused to take an appeal, but the judge did not reply. Bashlor’s conviction has never been reviewed. He requests that we grant full appellate review now, 27 years after his conviction, to remedy the trial judge’s error. Hollingshead v. Wain wright, 194 So.2d 577 (Fla.1967); cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968); Baggett v. Wainwright, 229 So.2d 239 (Fla.1970).

By an unpublished order we initially denied Bashlor’s petition without prejudice to a further application to the trial court, pursuant to Fla.R.Crim.P. 3.850. Bashlor’s petition for rehearing rightly suggested that no remedy is available in the trial court because the remedy sought is a counsel-assisted appeal from the judgment of conviction. Baggett v. Wainwright, 229 So.2d 239, 243 (Fla.1970). We have reconsidered the petition on the merits, after receiving briefs and extensive oral argument.

The state does not address Bashlor’s factual allegations, but says that the present petition is barred by the doctrine of res judicata because, in 1966, the Supreme Court of Florida denied Bashlor’s habeas corpus petition which complained of the denial of appellate counsel. Bashlor v. Wainwright, 189 So.2d 800 (Fla.1966), cert. denied, 386 U.S. 1022, 87 S.Ct. 1378, 18 L.Ed.2d 461 (1967). Bashlor’s 1966 petition to the Supreme Court, submitted without counsel, was the second of Bashlor’s collateral attacks on the judgment. Earlier, and also without counsel, Bashlor petitioned the trial court to arrest and vacate the conviction on the ground that a confession was obtained and used in violation of his right to counsel. The trial court had denied that petition, and this court affirmed, without opinion. Bashlor v. State, 177 So.2d 80 (Fla. 1st DCA 1965). Bashlor’s 1966 petition to the Supreme Court, raising for the first time an asserted right to a counsel-assisted appeal, was denied in a brief per curiam opinion which stated that Bashlor was “not entitled to release from custody.” Bashlor, 189 So.2d at 801.

In order to determine what questions were raised before and decided by the Supreme Court of Florida in 1966 and by the United States Supreme Court, when denying certiorari in 1967, we have examined the records of those cases which counsel have submitted. We find that the state urged to the Supreme Court of Florida that habeas corpus should be denied because Bashlor had not raised the issue of appeal remedies in the trial court by a Rule 1 (now Fla.R.Civ.P. 3.850) motion. In response to Bashlor’s petition for certiorari in the Supreme Court of the United States, filed with the assistance of Bashlor’s present counsel, the state argued that the Florida Supreme Court’s decision rested on purely procedural grounds. In contrast, the state now urges that the discharge, of Bashlor’s 1966 petition was a disposition on the merits which we must respect as final.

Res judicata is a judicial policy intended to make an end to litigation and to give dignity and respect to judicial proceedings. Eastern Shore Sales Co. v. City of North Miami Beach, 363 So.2d 321, at 324 (Fla.1978). A final decision, even though erroneous, will not be disturbed. Id., at 323. However, a judgment entered on grounds not involving the merits is not a basis for barring later consideration of the merits. Kent v. Sutker, 40 So.2d 145 (Fla.1949); Cabinet Craft, Inc. v. A. G. Spanos Enterprises, Inc., 348 So.2d 920 (Fla. 2d DCA 1977); Sorensen/Fletcher Construction Co. v. Grasso, 319 So.2d 194 (Fla. 4th DCA 1975), cert. dismissed, 324 So.2d 90 (Fla.1975).

The language of the Supreme Court’s 1966 decision on Bashlor’s claim, the separate opinions of the concurring justices, and the subsequent decisions of the Court all indicate that the Court denied Bashlor’s 1966 petition without deciding the merits of his claim to a right of appointed counsel on appeal. Res judicata, therefore, is no bar. The concurring opinions express disagreement over the impact of the United States Supreme Court’s 1963 decision in Douglas v. California. Justice Drew, with Justice O’Connell concurring, believed that Douglas required the state to provide counsel to indigent defendants for an appeal. 189 So.2d at 801. Justice Ervin agreed, but doubted that Douglas was intended to be applied retroactively. Id. at 803. Justice Barns was of the opinion that Douglas did not apply where defendant’s counsel had made a considered decision that an appeal should not be taken. Id. at 807. Despite these differences, all seven justices concurred in the judgment that Bashlor was “not entitled to release from custody.” Id. at 801, 810.

Only after Bashlor’s 1966 petition was discharged did the right to appointed counsel on appeal take shape in Florida law. Six months after the denial of Bashlor’s 1966 petition, the Supreme Court of Florida provided for belated appellate review through a writ of habeas corpus “when orderly appellate remedy has been rendered unavailable and an appeal within the period and in accordance with the procedure provided by law for appeals has not been afforded.” Hollingshead, 194 So.2d at 578. Still later the Court specified that full appellate review must be afforded where the criminal defendant makes known to the trial judge “his indigency and his desire to appeal” and where “the facts show a deprivation through state action of the rights guaranteed to said defendant.” Baggett, 229 So.2d at 241. Bashlor’s present allegations make a prima facie case that he was denied his right to appointed counsel for appeal, as required by Douglas as interpreted by Baggett. Bashlor alleges that he twice informed the trial judge that he. wished to have appointed counsel to assist him in taking an appeal, and that counsel was not appointed due to the inaction of the trial judge. An evidentiary hearing is required to determine the truth of Bashlor’s allegations.

We recognize that the passage of 27 years, and the intervening deaths of the trial judge and Bashlor’s trial counsel, may present serious problems of discerning the truth of Bashlor’s allegations. Yet, in the peculiar circumstances of this case, that interval should not of itself bar Bashlor’s claim for relief. This case is unlike Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970), in which a prisoner waited until 1970, 13 years after his conviction, before claiming for the first time that his court-appointed lawyer had failed to perfect an appeal. Bashlor allegedly raised this issue before the trial court in 1951 and, irrefutably, he raised it before the Supreme Court in 1966. If Bashlor’s claims were untimely, it is because they were raised too soon, not too late.

If Bashlor’s allegations are founded in fact, we must review the record of his conviction. We commission the Honorable Everett Richardson, Circuit Judge of the Fourth Judicial Circuit, to take testimony as necessary to determine if there is a factual basis for Bashlor’s allegations. His findings will be reported to us in due course. Baggett, 229 So.2d at 244.

MILLS, Acting C. J., and ERVIN, J., concur.

      . The Supreme Court held, four years later, that a Rule 3.850 motion is not a predicate to a petition in the district court of appeal for belated appellate review. Baggett, 229 So.2d at 243.


author: TATE, Justice,

text:
    Leo C. SINGLETON, III v. EXECUTIVE OFFICERS OF ATLAS CONSTRUCTION COMPANY, INC., et al.
    No. 63744.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   TATE, Justice,

dissenting.

The trial court found executive officer liability in the complete and blatant disregard of the company’s own safety regulations, and the complete lack of a safety program of any implementation effort to enforce these safety regulations on the construction contract in question. The uncon-tradicted evidence shows that the plaintiff's fall from a scaffold resulted from a violation on the job of a safety regulation which prohibited movement of scaffolding with workmen on it — forbidding workmen “riding” the scaffolding when it was moved from one location to another.

In the direct action against the insurer of the executive officers of the company, I do not see that it is fatal to the plaintiff’s suit that he did not discover or name exactly which executive officer was directly responsible to. supervise and make sure safety regulations were implemented, when it is obvious under the trial court’s appreciation of the evidence that whichever executive officer was responsible was totally neglectful of assuring the safety of employees on this construction contract.

I would therefore grant the plaintiff’s application in order to review the intermediate court’s reversal of the plaintiff’s judgment of $13,726.90 for Ms injuries against the liability insurer of the Atlas executive officers.


author: TATE, Justice.

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Lloyd Rodney CONSTANT et al.
    No. 62625.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Deramee & Deramee, David L. Landry, Thibodaux, for defendant-respondent.
    William W. Irwin, Jr., Johnnie E. Branch, Jr., Edward A. Michel, Bryan Miller, State Dept, of Highways, Baton Rouge, for plaintiff-applicant.
   TATE, Justice.

By the taking, the state highway department expropriated the entire loading and parking area of a marina operation conducted by the defendant landowners. The essential issue before us is:

Under the new constitutional provision that “the owner shall be compensated to the full extent of his loss”, La.Const. of 1974, Art. 1, Section 4, may the award to the defendant owners be sufficient to restore their business facilities to their condition prior to the taking, even though the amount so required is in excess of the market value of the parent tract from which a portion is taken for highway purposes?

We answer this question in the affirmative, for the reasons below to be stated.

I.

The state highway department expropriated certain property of the defendants in order to construct a new bridge and the highway approaches to it. The trial court awarded the defendants some seventy-two thousand dollars for the taking. The defendants answered the appeal, requesting that the award be increased by some thirty-seven thousand dollars, to allow for the replacement cost of a facility taken (without depreciation of such cost for prior use of the former facility).

Over the dissent of four judges, the five-judge majority of the court of appeal reduced the award by some twenty-four thousand dollars. 359 So.2d 666 (La.App. 1st Cir. 1978).

The taking of the entire loading and parking area (.56 acre) essentially destroyed the marina business operations on the entire parent tract (1.56 acres). Even so, the intermediate court majority felt that the trial court’s award for the taking of the loading area, $70,716, could not exceed the conceded market value of the land prior to the taking of the entire parent tract, $53,-000.

There was no evidence establishing a greater value of the business conducted on the premises (such as by capitalizing income). In its absence, the court of appeal majority felt that the award to the landowners for the loss of their loading area must be limited to $47,000 (the $53,000 value of the entire parent tract prior to the taking, less the $6,000 value of the remainder of the taking).

II.

In so doing, the majority first correctly recognized the new measure of damages recognized by the 1974 constitution’s provision that “the owner shall be compensated to the full extent of his loss.” Article 1, Section 4. Citing constitutional documents and debates, as well as commentary subsequent to the adoption of the constitution, the majority concluded that the intent of the provision was to broaden former constitutional concepts of the measures of damages and was intended to permit the owner “ ‘to remain in equivalent financial circumstances after the taking’ ”. 359 So.2d 671.

We denied the highway department’s application for review as to this part of the intermediate court’s holding. 362 So.2d 575 (La.1978) (writ note 2). As the court of appeal stated, summarizing another decision interpreting the provision, the new constitutional language “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.” 359 So.2d 670.

III.

Nevertheless, although enunciating that principle, the majority of the court of appeal concluded, 359 So.2d 672: “* * * 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 [property as a whole], less the value of the remaining property. . . .We find that our award [so measured] 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 a property utilized as a going business in the absence of proof of business losses.”

The majority therefore disallowed the trial court’s greater award. This had been based upon the replacement cost of constructing a new loading ramp, in order to permit the landowners to conduct the same business operations as they had prior to the taking.

The four-judge minority dissented from this reduction of the award. As stated by the dissenting opinion, 359 So.2d 673, 673:

“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 make the individual whole. ... 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.”

We granted the landowner’s application for certiorari, 362 So.2d 575 (La.1978) (writ note 1), in order to decide whether (as contended) and to what extent replacement cost of the taken facility should be allowed, under the circumstances of this case, in order that, as constitutionally required, the landowners should be compensated “to the full extent” of their loss. La.Const. of 1974, Article 1, Section 4.

IV.

Under the evidence in the record before us (see V below), the landowners are entitled to recover the replacement costs of constructing a new loading and parking area for their marina business operations. The evidence so taken does not prove any other method by which the owners may be placed in as good a position pecuniarily as they enjoyed prior to the taking. Without the replacement of their loading area, their marina business operations will be substantially destroyed.

In view of the constitutional requirement that they be compensated to the full extent of their loss, it is not constitutionally significant that the award to them will exceed the market value of the property used in their business operations. The very purpose of the constitutional language was to compensate an owner for any loss he sustained by reason of the taking, not restricted (as under the former constitution, see Dakin and Klein, Eminent Domain in Louisiana (1970) 70-72, 78-79, 95-96, 154-262), to the market value of the property taken and the loss of market value of the remainder, sometimes including the cost to cure such damage — i. e., where (formerly) the award was based solely upon the physical value of the property and the economic injury to the property itself, but not including injuries to a business or the cost of moving it due to the taking.

See, e. g.: Record of the Louisiana Constitutional Convention of 1973 (Louisiana Constitutional Records Commission, Baton Rouge, (1977): Volume 1, p. 86; Volume 6, pp. 1031,1032,1063-66 (39th Day’s Proceedings); Volume 7, 1239 — 1243 (delegate explaining revision of finally-adopted section, retaining full-extent-of-loss language of previous drafts, see esp. 1241 noting that tenant might be awarded cost of moving business, without regard to value of owner’s property taken) (46th Day’s Proceedings). See also: Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 15-16 (1974); Jenkins, The Declaration of Rights, 21 Loyola L.Rev. 9, 23-24 (1975).

V.

The evidence taken at the trial justifies the trial court’s determination that, under the record, the cost of replacing the loading and parking area was the most appropriate method by which to compensate the landowners to the full extent of the economic loss the expropriation caused to their marina business operations. By the taking, the highway department expropriated the entire loading and parking area indispensable to the landowners’ marina business activities conducted on the tract, part of which (i. e., the entire loading and parking area) was taken.

The parent tract was 1.56 acres in extent. It included a boat slip or channel, some 6-8 feet deep and about Vith acre in area, which had been constructed by the landowners some twenty years earlier. (The boat slip itself was not taken.)

On the south side of the boat slip, the landowners had filled in marshy land and had shelled it, and they had placed 110 linear feet of bulkheading on the boat channel (i. e., for boats to tie up to, and in order to prevent erosion of the compacted area). This compacted, shelled, and bulkheaded area was used for heavy-equipment and other loading and parking purposes in the defendant landowners’ marina business operations, to be described below.

The highway expropriation took this entire (.56 acre) parking and loading area. The evidence indicates there is no other “dry” (compacted) land in the immediate vicinity available for such purposes.

On the north side of the bayou was about /<ith acre of “wet” (semi-marsh) land, presently used for boat sheds. Due to its marshy nature, it is not suitable for use as a loading and parking area.

The substantial issue of this appellate review is whether, to compensate the landowners for the loss of their entire loading and parking area, they should be awarded the cost of a replacement of a loading and parking area to be constructed in this remainder of the north side of the boat slip— bulkheading it along its water front, filling and compacting it with more than 2,000 yards of landfill, shelling its surface with some 10,000 square feet of shell, etc.

Both the trial and the intermediate courts felt that the most reliable estimate of the cost for the replacement in this manner of the loading area was $62,216.

The evidence also shows that the “value” of the entire 1.56 acre parent tract was $53,000, based on the market value of $60,-000 per acre for “dry” (compacted) land and $6,000 per acre for “wet” (semi-marsh) land in the area. These per-acre values were based on comparable sales of similar dry or wet land tracts in the area without improvements. The experts admitted there were no comparable sales of marina-facilities or marine-businesses by which to estimate value.

The .56 acre taken had a stipulated market value of $26,537 for its land area. This did not take into consideration the bulk-heading (valued at $9,768), boat shed ($100), electrical conduit ($270), and additional pilings ($480) used to moor boats. However, the trial court felt that the award for merely these items to the defendant would not fully compensate them for the complete loss of access to the boat slip occasioned by the taking, indispensable to their marina business operations.

The defendants’ boat slip and one-half acre loading area was situated adjacent to and immediately north of a bridge across Bayou Boeff. Due to a low railway bridge across the waterway to the east of this location, drilling rigs and other heavy equipment cannot be shipped by barge to serve oil operations in the interior swamp areas through which the waterways (including this bayou) run.

Consequently, the defendants’ loading area is the only facility available to contractors and suppliers from which barges can be loaded and supplies be shipped to the oil exploration and oil production activities in the swamp and reached by the waterways connected with Bayou Boeff west of the railway bridge.

Prior to the taking, the loading area had been primarily used (a) for the commercial loading of heavy equipment and (b) for a boat launching business. The operations there conducted were an integral part of the defendants’ entire business operations conducted at the site, which also included the rental of crewboats to oil companies and the sale of gasoline and supplies from the premises.

As noted, the barge slip and adjacent area was the only site available for the commercial loading of heavy equipment (such as drilling rigs and pipes) and oilfield supplies to the oil drilling and exploration activities in the swampland through which the Bayou waterways run. Because of this unique availability, the defendant landowners had a competitive advantage in securing and servicing customers in the highly competitive business of crewboat rentals.

The boat-launch business conducted by the defendants on the site was likewise a valuable adjunct to their gasoline sales business conducted at the site. As many as 75-80 customers used the boat-launch business on weekends.

This uncontradicted evidence shows that the loss through the taking of the loading area caused substantial pecuniary business damage to the defendant landowners. It virtually destroyed the commercial usefulness to them of their boat slip, and it was indispensable to them in their commercial loading and boat-launching activities — and these economic activities, directly serviced by the loading and parking area which were expropriated, substantially contributed to the economic success of their other economic activities conducted at the site, primarily their crewboat rental and gasoline sales businesses.

It is thus apparent, as the trial court found, that for this loss the defendant landowners must be compensated by an amount additional to the surface value of the land and improvements taken in order that they “be compensated to the full extent of his [their] loss”, as required by Article 1, Section 4, of our s.tate constitution.

In the absence of other evidence in the record justifying a different award, we find no error in the trial court’s determination that the replacement of their taken landing area, or the award to them of the cost to do so, is required to compensate them for this loss.

VI.

The plaintiff department suggests, however, that, although a loss may be indicated, no evidence proves an actual amount of pecuniary loss. The department suggests that such business losses might most appropriately have been proved by income figures of the defendants’ businesses, from which a capitalized value of their economic operations might be found and from which capitalized value the percentage of (or entire) loss of their business income might be ascertained (or, rather, estimated).

This contention gave us some pause, as it did the majority of the court of appeal. Undoubtedly, evidence of this nature might have afforded a basis for determining a basis for a pecuniary award to the defendants for their business loss occasioned through the taking of the loading area, indispensable to their business activities.

Nevertheless, the landowners did in fact produce evidence of a different method by which to calculate an amount to fully compensate them for their loss, i. e., the replacement costs of a new loading area. This is an appropriate method of compensation, under the constitutional mandate, to repair fully the loss occasioned by their taking. (It is, perhaps, the most direct and sensible means of doing so, considering the unique value of the loading area to their commercial operations conducted at the site.)

We are unwilling to deny the landowners recovery, on some theory that their business losses may be compensated only by a capitalized-income approach to valuation. The constitution does not so require; but it does require that the landowners be fully compensated, without specifying any method by which to determine such compensation.

If the department felt that a capitalized-income approach would be a more adequate basis by which to estimate the landowners’ loss, the department itself could have produced evidence to this effect. For instance, discovery and subpoenas of the defendants’ business records could have supplied this information for the trier of fact.

Further, a capitalized-income approach, under the rather unique circumstances of the present case, may not have produced as certain a measure of the landowners’ loss as did the replacement costs introduced in evidence in the present case. Even with full evidence as to the capitalized value of all of the defendants’ business operations at the site, the estimate of the percentage to which the loading strip contributed to each would of necessity have been something of a speculative estimate — for instance, how many crewboat rentals would the defendants have lost, conducting their operations from another site, is not likely to have been a matter determined other than by informed guess.

We therefore do not accept the department’s contention that the defendants’ business losses could be proved only by an approach based on determining their incomes from the businesses conducted from the site.

VII.

Accordingly, we find no error in the trial court’s determination that, under the present record, the defendant landowners should be compensated by the cost of replacing their loading area, to fully compensate them for the loss occasioned their business operations by the taking of the loading area indispensable to them.

Rejecting higher estimates offered by the landowners, the trial court accepted a department expert’s testimony that $62,216 would be the cost of replacing the loading strip by constructing a comparable one on the wet land owned by the defendants on the north side of the boat slip — by land-fill, shelling, and bulkheading, etc.

This construction list did not include a permit fee of $1,200 required of federal authorities. Nor did it include an engineering fee, which another defendant’s expert estimated at $1,500, see Tr. 125. The defendants are thus additionally entitled to an award of $2,700 for these indirect costs of constructing the new loading strip.

Thus, the total replacement construction cost proved by the record is $64,916. This figure was based on estimates of prices secured in 1975.

In addition, the trial court awarded the defendants the value of their wet land on the north side of the boat slip, formerly used by them for other purposes. We see no reason why this is any less a loss to the defendants than if, instead of owning the site, they had been required to purchase it for purposes of the replacement loading area. For this element of damage, we find an award of $3,360 to be appropriate (.56 acres, at $6,000 per acre value of the set (semi-marsh) land).

A substantial issue is presented whether the landowners should be awarded the $62,216 construction costs in full, or should instead receive its value as depreciated by the 20-year use of the former (expropriated) loading area. The department’s experts testified that a loading area has a normal 50-year life span, so that (if the 40% depreciated value of the former loading area is to be taken into account) the landowners would receive only 60% of the direct construction costs of the new loading area.

The trial court felt that the landowners would receive an unjustified enrichment if they received a new loading strip with a 50-year life expectancy, in replacement of their expropriated former loading strip with its life expectancy merely of 30 more years. However, an enrichment is not “un justified”, if justified by law (i. e., if there is a legal cause for it), as would be the case if the constitutional provision so requires that a landowner must be fully compensated for his loss.

Under the circumstances and the nature of the property taken, we agree with the dissenting judges that no deduction should be made for the depreciated value of the former loading area which was expropriated. With regard to the landowners, the loading area had a lifetime use — the loading strip with a 30-year life expectancy had no less economic and actual value to them than would one with a 50-year life expectancy.

The evidence shows that the loading area was kept up and repaired as minor needs arose, with bulkheading replaced when damaged, for instance. More probably than not, despite its theoretical 30-year life expectancy, the expropriated loading strip at the end of thirty years would have still been as serviceable to them as on the date of taking.

The theoretical calculation of a 50-year life expectancy, for tax or accounting purposes, does not seem to us to provide an appropriate guide to compensating the present landowners for the cost of the replacement of their indefinitely serviceable loading area, with a new loading area no more serviceable to them, and which only theoretically will have a longer life than the one which was expropriated from them.

We have also taken into consideration the compensation-lag of protracted judicial proceedings and its effect on the sixty-two thousand dollar estimate for replacing the loading area, required in order to compensate the landowners fully for their loss occasioned by the taking. The estimate was based upon the 1975 costs, and this estimate must be considered conservative in the light of the inflationary rises in costs since 1975.

We do not, by these rulings, announce any general principle that replacement cost is always the most appropriate measure of awarding a landowner compensation for the taking of a physical asset used in his business, nor that the depreciation of the former asset should never be considered.

Generally, we assume, the landowners may be compensated fully by other approaches than by awarding them the replacement cost of the improvement taken, especially where (unlike the present instance) the property is not shown to be both unique in nature and location and also indispensable to the conduct of the landowners’ business operations on the site from which a part is taken. Likewise, in the usual situation the depreciated value of the asset taken will have some lessening effect on the award to the landowner, since he may be fully compensated by the actual pecuniary value of the asset taken. For instance, the full compensation constitutionally provided does not require that the owner receive a new building to replace a dilapidated one which is expropriated.

In the present case, however, the depreciation theories are of an essentially theoretical nature insofar as their effect upon the actual serviceability and economic value of the nature of the property (the loading strip) taken. Its replacement cost is appropriate, because of its unique and indispensable value to the defendants’ business operations conducted at the site.

Therefore, under the evidence in the present record, we find the replacement cost of the asset taken is an appropriate measure of the damages by which to compensate fully the landowners for their holding area taken, and without any deduction for alleged depreciation occasioned by their prior use of the taken asset to be replaced.

VIII.

Accordingly, we find that the landowners should be awarded, for the costs of replacing the loading strip to compensate them fully for their loss, the following:

$64,916.00 direct and indirect costs of constructing replacement loading area
3.360.00 value of their land upon which replacement loading area will be constructed
$68,276.00 Total

The award of this amount as the replacement cost (including land) of the former loading area, will fully compensate the landowners for that area’s land value (parcel P — 2-6), which was stipulated to be $26,-537. The award of the replacement costs fully compensates the landowners for this stipulated value of the land (Parcel P-2-6) which was expropriated. To allow an additional recovery for the land taken would constitute a double recovery.

IX.

In summary, the landowner is entitled to the following award:

$68,276.00 replacement costs, summarized in VIII
370.00 improvements on loading strip (boat shed and electrical conduit) destroyed by taking Parcel P-2-6
1.735.75 uncontested land value and severance damage of two non-contiguous strips taken (parcels P-2-7 and P-2-7D-l)
$70,642.75 Total for the takings
less 34.594.00 credit for deposits made by highway department
$36,048.75 Net award to the defendant landowners for the taking

In addition, the previous courts properly awarded the landowners legal interest (7%) per annum on the amount from June 23, 1975, the date of taking (except for $790, not deposited until March 7,1977, for which $90.10 interest was awarded), and attorneys’ fees of 25% of this amount (the difference between the amount taken and the amount awarded (see La.R.S. 48:453(E), as amended in 1976).

Decree

Accordingly, allowing credit for the deposits made, we amend the judgment of the previous courts so as to award the defendant landowners judgment for Thirty-Six Thousand Forty-Eight and 75/100 Dollars ($36,048.75), being the net amount due them, together with 25% additional upon this amount as attorneys’ fees. The defendants are additionally awarded the sum of $90.10 (interest on $790 not deposited until March 7, 1977) and also interest at the rate of seven per cent (7%) per annum on $35,258.75''(the principal amount, less $790) from June 23,1975 until paid. The plaintiff is taxed with all costs of these proceedings. Except as herein amended, the judgment of the previous courts are affirmed.

AWARD TO LANDOWNERS IN EXPROPRIATION INCREASED; JUDGMENT OF COURT OF APPEAL AMENDED.

SUMMERS, C. J., dissents.

BLANCHE, J., recused.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, is participating in this decision as an Associate Justice Ad Hoc.

      .The trial court awarded a total of $72,451.75 for the entire taking, less credit for $34,594 deposited by the taker.

      . The landowners prayed for an increase to $109,075 (less deposit).

      . I. e., to $48,375 (less deposit).

      . On the western (northern) side of the railroad bridge there are two other docks, each owned by oil corporations (Humble Oil and Amoco). However, they are not open to the use of independent companies and private suppliers.

      . The equipment and supplies were transported in heavy trucks to the defendants’ loading area, and then transhipped from there by barge to the drilling sites. Drilling rigs, for instance, had to be disassembled in order to be shipped by barge up to the drilling sites.

      . Although not here relied upon, the boat-launch business also was of substantial contribution to a lounge business conducted by one of the defendant landowners on property immediately across the highway from the boat-launching area of the tract taken.

      .The state also suggests that the evidence does not prove that the site across the present boat slip is the only one available for the continuance of the defendants’ marina operations. We do not find this contention persuasive. The land values in the area (dry land at sixty to sixty-five thousand dollars per acre, wet land (which would have to be rebuilt as contemplated by our present award) at six thousand dollars per acre) do not suggest that the landowners could be compensated by the cost of moving their operation to (and acquiring) another location.

      . This award should be, as the trial court found, in addition to the award to them for the value of the land actually taken and for the improvements thereon which were destroyed by the taking (but excluding the bulkheading, which will be replaced by the new construction).

      . See, e. g., Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 885, 886-88, 904 (1976).


author: TATE, Justice

text:
    Nanette Renee HEBERT v. MARYLAND CASUALTY CO. et al.
    No. 64183.
    Supreme Court of Louisiana.
    March 30, 1979.
   TATE, Justice

(concurring in the denial).

The result is correct. However, the fault of the victim that defeats recovery for harm occasioned by strict liability imposable upon the defendant involves a voluntary exposure to the risk with full knowledge and appreciation of the danger. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 140-141. The trier of fact could properly have found that the plaintiff, an experienced horsewoman had so assumed the risk.

Although the language of the court of appeal incorrectly suggests that the objective test of contributory negligence rather than the subjective test of assumption of the risk defeats a recovery based on strict liability, the result is correct. See Daniel v. Cambridge Mutual Fire Insurance Co., 368 So.2d 810 (La.App. 2nd Cir. 1979) in which writs were denied this day, for a correct statement of the principles involved.


author: DIXON, Justice,

text:
    STATE of Louisiana v. David THERIOT and Michael J. Martinez.
    No. 64083.
    Supreme Court of Louisiana.
    March 30, 1979.
   DIXON, Justice,

concurs in granting the writ for the following reasons:

This is a complaint from the denial of a motion to disclose the identity of a confidential informer and from the denial of a motion to quash because of a seven months delay from the date of the offense until the arrest and charge. Defendants were arrested August 2,1978 for a charge of selling phencyclidine to Deputy Breaux at the house occupied by the two defendants on January 23, 1978. The deputy is supposed to have gone to the house with a confidential informer named Art who introduced Breaux to the two defendants.

The defense is that Breaux did not come to the house on January 23, 1978, and there is some evidence to support this contention. At any rate, it is alleged that Art was a material witness and his identity should be made known to the defendants so they could have the advantage of his testimony.

The allegation is made that this was a case of entrapment, but there is little argument to support that defense. However, no reason is suggested why the witness to the transaction should not be subject to summons by the defense. The defense is entitled to the benefit of Art’s knowledge and the state has no right to hide the identity of the witness,


text:
    Jeannie Elizabeth TOLAR v. William R. CUNNINGHAM and Patricia A. C. Cunningham.
    No. 64212.
    Supreme Court of Louisiana.
    March 23, 1979.
   In re William R. Cunningham and Patricia A. C. Cunningham apply for writ of certiorari, Third Circuit Court of Appeal. Parish of Grant. 368 So.2d 1188.

Writ denied. Stay order set aside.


text:
    Delmont O. DAPREMONT, Jr. and Joan M. Dapremont v. Jacqueline CROSSLEY.
    No. 64203.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Delmont 0. Dapremont, Jr. and Joan M. Dapremont applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 367 So.2d 127.

Writ denied.


text:
    STATE of Louisiana v. EXTRADITION OF Eric B. COURSEN to the State of New York.
    No. 64383.
    Supreme Court of Louisiana.
    April 10, 1979.
   In re Eric B. Coursen, applying for writ of certiorari. Parish of East Baton Rouge. No. 3-79^40.

Writ denied.


text:
    STATE of Louisiana v. Willie Lee DAVIS.
    No. 64369.
    Supreme Court of Louisiana.
    April 12, 1979.
   In re Willie Lee Davis, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 2-79-587.

Writ granted. Preliminary hearing ordered forthwith.


text:
    STATE of Louisiana v. Bruce W. SHANNON.
    No. 64400.
    Supreme Court of Louisiana.
    April 12, 1979.
   In re Bruce W. Shannon, applying for writs of certiorari, mandamus and prohibition. Orleans Parish. No. 255-335.

Writ granted. The trial Judge is ordered to compel State to furnish funds for production of essential witness Soto.


text:
    Robert KOLLET and Elizabeth Dianne Kollet v. Michael G. BAGGOT and Roustabouts, Inc.
    No. 64410.
    Supreme Court of Louisiana.
    April 12, 1979.
   In re Robert Koilet and Elizabeth Dianne Koilet, applying for writs of certiorari, prohibition and/or mandamus. St. Mary Parish. No. 55239.

Denied.


text:
    STATE of Louisiana v. H. M. “Mike” CANNON.
    No. 64363.
    Supreme Court of Louisiana.
    April 12, 1979.
   In re H. M. “Mike” Cannon applying for writs of review, mandamus and certiorari and for a stay order. Parish of East Baton Rouge. No. 2-79-156.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank Shea Ad Hoc Judge of the Nineteenth Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 26th day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be assigned by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. H. M. “Mike” CANNON.
    No. 64364.
    Supreme Court of Louisiana.
    April 12, 1979.
   In re H. M. “Mike” Cannon applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. Nos. 2-79-156 and 2-79-408.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank J. Shea Ad Hoc Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 26th day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and thé respondent through counsel shall show cause, in this court, on a date to be assigned by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: BLANCHE, Judge.

text:
    William C. GARRETT et al. v. Anna ERNEST, wife of/and Gilbert Ernest and many others.
    No. 12414.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Charles E. McHale, Jr., New Orleans, for plaintiffs, appellants.
    Larry J. Green, Philip E. Pfeffer, Coving-ton, Richard L. Muller, Mandeville, James J. Whittenburg, Patrick J. Berrigan, G. Brice Jones, Slidell, for defendants, appellees.
    Robert L. Bailey, III, Mandeville, for absent defendants, appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ. '
   BLANCHE, Judge.

This appeal arises out of a petitory action brought by William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder, seeking to be declared owners of a certain tract of land located in St. Tammany Parish and to have cancelled certain deeds and mortgages filed in the Mortgage and Conveyance Records of that parish.

An answer and reconventional demand was filed by some defendants which assailed plaintiffs’ alleged title and claimed they were the lawful owners of the tract in question as shown by the public records and by virtue of the acquisitive prescription of ten and thirty years. From a judgment dismissing their claims, plaintiffs have appealed. We affirm.

The suit involves a tract of land containing 120 acres which was originally owned by Hamp Robinson by virtue of a patent from the United States dated November 23, 1892, and described as follows:

The southwest quarter of the northeast quarter and the north half of the southeast quarter of Section 34, Township 8 South, Range 14 East, St. Tammany Parish, Louisiana.

The appellants pleaded their title as follows:

“(1) Patent by United States of America to Hamp Robinson, dated November 23, 1892, C.O.B. 43 folio 284.
“(2) Tax sale to George W. Gause for 1894 taxes in the name of Hamp Robinson, C.O.B. R, folio 48.
“(3) Tax Sale to Salmen Brick and Lumber Co. for 1931 taxes in the name of Hank Robinson, C.O.B. 121, folio 170.
“(4) Heirs of George W. Gause to William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder, dated June 16, 1966, C.O.B. 425 folio 211.
“(5) Salmen Brick and Lumber Co. to William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder, dated October 5, 1966, C.O.B. 438 folio 162.
“(6) Judgment William C. Garrett et als vs Hamp Robinson et als No. 26611, 22nd Judicial District Court of the Parish of St. Tammany, State of Louisiana, dated October 6, 1967, filed for record October 10, 1967, C.O.B. 475 folio 349.” (Record, pp. 1,2)

Defendants are numerous individuals who have held, or who now hold, various real interests in the property and whose interests were obtained, through mesne conveyances, from the' original patentee, Hamp Robinson.

The trial judge found that Hamp Robinson lived on and farmed the property from the time he acquired it in 1892 until his death, the date of which is not in the record. During this period Robinson moved his house three or four times, and after he died, his widow continued to live on the property until her death. We note that the testimony of two witnesses also established that some of the grandchildren of Robinson still reside on parts of the tract. The evidence indicates, and the trial court found, that most of the defendants live on the tract in question. Having found the defendants to be in possession, the trial judge held plaintiffs must make out their title good against the world under Article 3653 of the Louisiana Code of Civil Procedure.

Plaintiffs based their claim of ownership on two separate tax sales, one to George Gause (Gause deed) on June 23, 1895, and one to Salmen Brick and Lumber Company (Salmen deed) in 1932.

The Salmen deed was executed on December 10, 1932, for unpaid taxes assessed in the name of Hank Robinson on property described as:

“80 Acs. Sec. 33-9-14, situated in Ward 8, Parish of St. Tammany, Louisiana.” (Exhibit “P-3”)

The defendants objected to the admission of this tax deed on the grounds that on its face it bore no relation to the property in controversy since it described property apparently in another section and township and there was no proces-verbal to indicate an error had been committed. The trial judge postponed ruling on this objection and later found it unnecessary to do so in rendering his judgment.

The Gause deed was executed on June 22, 1895, after a sale for unpaid taxes for the year 1894 assessed in the name of “Hemp Robertson” on property described on the tax rolls as “120 [acres] Land & imp. T. 9. R. 14 E.” The deed described the property being sold on that day as belonging to Hamp Robinson and being:

“121 20/100 acres of land & improvements SW lk of NE Vi N Vi of SE Vi of Sec 34, To 8 R 14 E Parish of St. Tammany.” (Exhibit “P-2”)

Plaintiffs trace their title from this sale to a quitclaim deed executed by Gause’s heirs to them in 1966. They also claim that this title is unassailable, based upon a judgment in an Action to Quiet Tax Title brought under LSA-R.S. 47:2228 (hereinafter referred to as “confirmation suit”) entitled “William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder vs. Hamp Robinson and Jane Scott Robinson and/or Their Heirs,” No. 26,611, obtained in the Twenty-second Judicial District Court for the Parish of St. Tammany, which judgment is now final.

Defendants resisted plaintiffs’ claim citing, inter alia, the following:

(1) It is not bound by the confirmation suit since none of the defendants were made parties thereto.
(2) Even if it were to be construed that they were bound, the judgment in the confirmation suit is, nevertheless,
(a) absolutely null for lack of service and citation under LSA-C.C.P. art. 2002.
(b) relatively null under LSA C.C.P. art. 2004 for fraud and ill practices
(3) It may attack the Gause deed because (a) peremption of three and five years has been interrupted since Hamp Robinson’s heirs and assigns have resided continuously on the property since 1894
(b) the defects of the tax sale are those which cannot be cured by per-emption, i. e.:
1. that the property description in the assessment was so deficient as to constitute no assessment at all
2. that G. H. Gause was the tax assessor at the time of the sale which was and is contra bonos mores
(4) The judgments of possession in the Successions of Kate Gause and George Gause were inadmissible since not specifically pleaded in plaintiffs’ chain of title and, hence, plaintiff could not show an unbroken chain of title back to the sovereign.

The trial judge held that the confirmation suit was an absolute nullity and that it was an essential link in plaintiffs’ chain of title, and therefore, dismissed plaintiffs’ claims since they were unable to show an unbroken chain of title back to the sovereign.

It is unclear whether the trial court declared the confirmation suit an absolute nullity under Article 2002 for lack of service and citation or a relative nullity under Article 2004 for fraud and ill practices. In the petition in that suit, the appellants herein alleged that they:

“exercised due diligence to discover the whereabouts of defendants [Hamp Robinson and Jane Scott Robinson] and/or their heirs and the existence or whereabouts of same are unknown.” (Petition in Suit No. 26,611)

The petition further alleged that “the * * described property is unimproved and vacant” and prayed that a curator ad hoc be appointed to represent the absent defendants. The trial judge, in his opinion, said:

“There is a very serious question of the validity of the judgment obtained in the suit to quiet this tax sale. The defendants in that action were Hamp Robinson and Jane Scott Robinson and/or their heirs. These defendants were represented by a court appointed attorney since their whereabouts were unknown. At the hearing of this matter the attorney for the defendants reported to the Court that he had checked the Registrar of Voters’ records for the names and addresses of defendants and found nothing. No further steps were taken to locate defendants or their heirs. The attorney then stated that he could not locate the defendants or their heirs. One of the plaintiffs testified at this hearing that he had located ‘quite a few’ of Hamp Robinson’s heirs and had obtained a quit claim from some of the heirs he had located. Under these circumstances, the fact that defendants were not contacted or given a chance to come forth and assert their defenses renders the judgment obtained in the tax title confirmation null and void insofar as it purports to be a link in plaintiffs’ chain of title.” (Record, pp. 451-452)

The court made no determination as to the validity of the tax sale itself.

Appellants assign inter alia the following as errors by the trial court.

(1) Finding a confirmation judgment as a necessary link in a title containing a tax deed without which a petitory action cannot succeed.
(2) Finding the confirmation judgment to be a nullity.
(3) Finding that the testimony established that Hamp Robinson lived on and farmed the property in question from about the time he acquired it, until the time of his death.
(4) Not sustaining appellants’ pleas of three- and five-year peremption pursuant to the 1879,1898 and 1921 Constitution.
(5) Not sustaining appellants’ plea of prescription of ten years pursuant to LSA-R.S. 41:1328.
(6) Excluding evidence of the judgments of possession in the Succession of G. W. Gause, et al., on the basis that same were not pleaded.

BURDEN OF PROOF

With regard to petitory actions, LSA-C. C.P. art. 3651 provides:

“The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.”

LSA-C.C.P. art. 3653, in pertinent part, provides:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
“(1) Make out his title thereto, if the court finds that the defendant is in possession thereof * * * ”

It is well settled that when the defendant is in possession, the plaintiff must rely on the strength of his own title and not the weakness of that of his adversary, and the title of the defendant is not at issue until plaintiff has proved valid title in himself, e. g. Montgomery v. Breaux, 297 So.2d 185 (La.1974). A plaintiff makes out his title when he proves his ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant, or that he has acquired the property by the prescription of ten or thirty years. Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974); Bishop Homes, Inc. v. Devall, 336 So.2d 313 (La.App. 1st Cir. 1976), writ denied 338 So.2d 1155 (La.1976). Finally, if the plaintiff should fail and be unable to make out his title good against the world, his demands must be rejected even if defendants have no title to the property; e. g., Osborn v. Johnston, 308 So.2d 464 (La.App. 3rd Cir. 1975), affirmed, 322 So.2d 112 (La.1975).

The trial judge found that most of the defendants were in possession of the tract. Our review of the evidence indicates that at the time of this suit, of the twenty-six or so witnesses holding title to various parts of the tract who testified, only two could be classified as not being in possession. As to the remaining areas of the original tract which were never alienated by Hamp Robinson or his heirs, testimony of two credible witnesses established that several of Hamp Robinson’s grandchildren have continued to live on the property since Hamp Robinson’s death. We, therefore, find no manifest error in the finding by the trial court thát defendants are in possession.

GAUSE DEED

Confirmation Proceedings

Appellants claim the trial court erred in annulling the judgment obtained by them in the Action to Quiet Tax Title entitled “Garrett v. Hamp Robinson, et al.” The applicable statute relied upon by defendants is LSA-R.S. 47:2228, which provides:

“After the lapse of three years from the date of recording the tax deed in the conveyance records of the parish where such property is situated, the purchaser, his heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors of the property, in which petition must appear a description of the property, mention of the time and place of the sale and name of officer who made same, reference to page of record book and date of recording tax deed, notice that petitioner is owner of the said property by virtue of said tax sale, and notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation. This suit shall be brought in the parish where the property is situated unless it lies in two or more parishes, in which ease this suit may be instituted in either of such parishes. The petition and citation shall be served as in ordinary suits; provided, that if the former proprietor be a nonresident of the state, or unknown, or his residence be unknown, the court shall appoint a curator ad hoc to represent him and receive service, and said curator shall receive for his services a reasonable fee to be fixed by the court in each suit, the same to be taxed as costs of suit. After the lapse of six months from the date of service of petition and citation, if no proceeding to annul the sale has been instituted, judgment shall be rendered quieting and confirming the title.
“In all cases where tax titles have been quieted by prescription of five years under the provisions of Section [11] of Article [X] of the Constitution of [1921], the purchaser or his heirs or assigns may, if he or they so desire, either obtain a judgment of the court confirming the title by suit in the manner and form as herein-above set out, except that the delay for answer shall be ten days instead of six months, or the purchaser or his heirs or assigns may, at his or her option, quiet the title by monition proceeding, as provided by law relative to sheriffs’ sales and tax sales; provided that the failure to bring suit shall in no manner affect such prescriptive titles.”

Appellants claim that the law does not require them to name in their suit, nor make service or notice upon, any heirs or assigns of the original tax debtor and rely upon Stockbridge v. Martin, 162 La. 601, 110 So. 828 (1926). It is true that in Stockbridge the Supreme Court recognized that:

“The statute does not provide nor did it contemplate that every person having some color of title to the property or some supposed right thereto should be notified and brought into the proceeding to quiet the tax title. The statute merely requires that the suit may be instituted by petition and citation, as in ordinary actions against the former proprietor or proprietors of the property, and this could only mean the former owner as disclosed by the record and assessment.” (110 So.2d at 832)

However, in Webb v. Shiflett, 168 La. 920, 123 So. 620, 621 (1929), the Supreme Court implied that there may be times when an heir or assign should be made a party to such an action:

“In our opinion, a suit to quiet a tax title must be brought against a former proprietor or proprietors of the property or some one claiming to have acquired from or through such proprietor or proprietors. * * * ”

We believe that one such time is when the existence and whereabouts of heirs or assigns of the former proprietor and tax debt- or are within the actual knowledge of the person or persons seeking to confirm the tax title, or the heirs’ or assigns’ existence and whereabouts are so easily determined that it can be inferred that no reasonable attempt at all was made to locate the same. This is especially true where the period of time between the tax sale and confirmation proceeding is so lengthy that it may be presumed that the original owner is dead. Otherwise, the confirmation procedure would be an exercise in futility since it is designed to cut off defenses of the tax debtor, or one claiming under him, for defects in the tax sale not cured by peremption.

The confirmation suit was filed on May 31, 1967, and contained allegations by the appellants herein that “petitioners have exercised due diligence to discover the whereabouts of defendants and/or their heirs and the existence or whereabouts of same are unknown” and that “the above described property is unimproved and vacant.” However, these allegations are contrary to certain affidavits of death and heirship dated October and November, 1966, filed in evidence by appellants in that suit containing statements by the following heirs of Hamp Robinson: Ike Robinson (son), Ike Robinson, Jr. (grandson), Will Du-cre (grandson), Victoria Ducre Parker (granddaughter), Edward Ducre (grandson) and Alice Ducre Nicholas (granddaughter).

Even more amazing in light of the allegations that appellants were unable to locate any heirs of Hamp Robinson and the property was vacant and unimproved, is that William C. Garrett testified at the confirmation proceeding that he had located quite a few of the heirs and had acquired quitclaims from quite a few of them. In addition, the testimony by two witnesses at the trial herein established that a number of the heirs still reside on the property. These include, among others, Victoria Ducre Parker and Alice Ducre.

The evidence is overwhelming that at the time the confirmation suit was filed appellants knew of the existence and whereabouts of many of the heirs of Hamp Robinson. At least two of them still reside on the original tract.

It is well settled that the absolute nullity of a judgment may be pled by any party against whom it is sought to be enforced. Warner v. Garrett, 268 So.2d 92, 96 (La.App. 1st Cir. 1972), writ denied, 263 La. 987, 270 So.2d 123 (1972). Thus, plaintiffs’ failure to comply with R.S. 47:2228, not filing suit against a former proprietor or proprietors of the property or some one claiming to have acquired from or through such proprietor or proprietors, renders the judgment a nullity.

Though one heir, Elijah Cooper, was served with the confirmation suit, he was not a named defendant in the suit. In light of all the attending facts, we find that service on an unnamed defendant is of no significance.

We, therefore, conclude that the trial judge committed no error in annulling the confirmation judgment asserted by appellants.

Peremption

This Court recently reviewed the jurisprudence relative to what defects in a tax sale are barred by the three- and five-year peremption of Article 10, § 11 of the Louisiana Constitution of 1921 in Warner v. Garrett, supra:

“ * * * It is well established that certain nullities attending tax sales are relative and are cured by the three and five year prescriptive periods provided by LSA — Const, art. 10, Sec. 11, and the statutes enacted by the legislature from time to time. Among these are failure to properly advertise (Robinson v. Williams, 45 La.Ann. 485, 12 So. 499): lack of notice (Skannal v. Hespeth, 196 La. 87, 198 So. 661); and sale for taxes which have prescribed (Fellman’s Heirs v. Interstate Land Co., 163 La. 529, 112 So. 405). Defects which have been held to render tax sales absolutely null, and therefore, incurable by prescription, include prior payment of taxes and dual assessment (Gremillion v. Daigrepont, La.App., 47 So.2d 363); lack of assessment (Tillery v. Fuller, 190 La. 586, 182 So. 683); inadequate description (Yuges Realty v. Jefferson Parish Developers, 205 La. 1033, 18 So.2d 607), and fraud (Wall v. Hamner, 182 La. 1049, 162 So. 769).” (268 So.2d at 97)

Since no valid confirmation judgment has been rendered, those defects which render a tax sale absolutely null may still be raised by defendants herein to defeat the tax title asserted by the appellants. Warner v. Garrett, supra.

Defendants-appellees claim the description of property contained in the assessment in 1894 was so vague as. to constitute no assessment at all against the property of. Hamp, Robinson and no valid tax sale could, occur as a result thereof. We agree.

We note three elements which combine to render the assessment invalid.

The property description on the 1894 tax rolls reads as follows: “120 [acres] Land & imp. T. 9. R. 14 E.” The description fails to designate what parcels of land in the listed township and range are being assessed. Also, the description contains no section number and designates the property as in Township 9, whereas Hamp Robinson’s property was located in Township 8. In addition, the property was assessed in the name of “Hemp Robertson” as opposed to “Hamp Robinson.” Finally, there is no curative evidence in the record to indicate that the above property assessment referred to the property of Hamp Robinson in Section 34, Township 8, Range 14.

The Louisiana Supreme Court noted in Jackson v. Irion, 196 La. 728, 200 So. 18 (1941), the following:

“It is needless to cite authorities to support the proposition that a tax sale which describes no property, or which contains a description so vague, indefinite, and uncertain that the property intended to be sold cannot be identified, is no sale at all, and the peremptive periods specified in the Constitution do not apply.
“The jurisprudence applicable to cases of this kind was concisely stated by this court, through the Chief Justice as its organ, in a very recent case, that of Tillery v. Fuller, 190 La. 586, 182 So. 683, 704, as follows: ‘A tax sale made under an assessment in which the description of the property intended to be assessed is so defective that resort must be had to evidence outside of the assessment roll in order to identify the property intended to be assessed is protected by the limitation of three years if the assessment was made in the name of the true owner, or owner of record, of the property intended to be assessed, and if the identity of the property intended to be assessed is established unmistakably by such outside evidence. Close v. Rowan, 171 La. 263, 130 So. 350; Gayle v. Slicer, 188 La. 940, 178 So. 498.’
“In the same opinion we said: ‘In such cases the identification of the property intended to be assessed may be confirmed by proof that the party in whose name the property was assessed did not own any other property in the section or other subdivision given in the assessment. Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679; In re Perrault’s Estate, 128 La. 453, 54 So. 939; Vannetta v. Busbey, 131 La. 681, 60 So. 76; Landry v. McWilliams, 135 La. 655, 65 So. 875; Pierson v. Castell Land & Harbor Co., 159 La. 158, 105 So. 274; Close v. Rowan, 171 La. 263, 130 So. 350; Gayle v. Slicer, 188 La. 940, 178 So. 498.’ ” (200 So. at 19, 20)

The description, “120 [acres] Land & imp. T. 9. R. 14 E.,” is vague and indefinite in that it fails to state in what section the property is located. Further the. description is defective in that the property assessed is in a different township than the property later sold for the unpaid taxes.

The above defects in the description are not conclusive that the assessment was invalid, Jackson v. Irion, supra, nor is the fact that the assessment was made in the name of “Hemp Robertson,” whereas the property sold belonged to Hamp Robinson. The appellants could have cured these defects by evidence outside the tax rolls that the property in question was indeed the property sought to be assessed. This the appellants failed to do.

From the evidence in the record we are unable to conclude that the property sought to be assessed was the 120 acres owned by Hamp Robinson by virtue of a patent issued in 1892 and sold at the tax sale to G. H. Gause.

Appellants claim the defective assessment is cured by the notation on the assessment roll opposite the assessment, which reads:

“Sold to G. H. Gause 121Z0/ioo acres and impro SW ¥1 of NE Vi N ¥2 of SE Vi Sec 34 T. 8, R 14 E. June 22, 1895”

We disagree. This notation was clearly written in by someone after the tax sale was completed and is not probative of whether the property sought to be assessed was actually the property sold.

We, therefore, conclude that the tax sale upon which appellants claim title was an absolute nullity due to lack of assessment and this defect was not cured by peremption of three and five years.

Prescription

Appellants’ last claim is that the trial judge erred in not sustaining their plea of prescription of ten years under LSA-R.S. 41:1328. We disagree. LSA-R.S. 41:1328 provides:

“A. Any person holding, or claiming immovable property under a deed made by a sheriff, or a tax collector, or other state or parish officer, which has been on record for more than ten years, and is, or purports to be, founded on a forfeiture for taxes theretofore had or made, or conveys or purports to convey an interest or title in such property acquired or pretended to have been acquired by the state, under a tax forfeiture, whether any such forfeiture actually took place or not, shall after the expiration of three years from July 7, 1904 be held and deemed to be the absolute owner of the property described in such deed, provided, they or their authors shall have paid, or do pay all taxes assessed against said property for such period of thirteen years. No court in this state shall thereafter entertain any suit to cancel or in any wise affect the title of any person or corporation claiming by, through or under such deed.
“B. The provisions of Sub-section A of this Section shall not apply whenever the original owner of the property was, on July 7, 1904, in the actual physical adverse possession of the property, nor, when such original owner has paid the taxes assessed against such property for any one year within ten years prior to July 7, 1904, or, within three years thereafter, has instituted a proceeding to cancel such tax deed or forfieture as a cloud upon his title.”

The prescription of R.S. 41:1328 is inapplicable if the original owner paid taxes any one year within ten years prior to July 7, 1904, or within three years thereafter, or had actual physical adverse possession of the property on July 7,1904. Neither party sought to introduce the tax records for the period between 1895 and 1910. However, the trial judge concluded in his findings of fact that Hamp Robinson possessed the property from the time the patent was issued until his death, and his heirs continuously thereafter. By implication, this means Hamp Robinson was in possession of the property on July 7, 1904. We find this conclusion to be a reasonable inference from the evidence before the trial judge and not manifestly erroneous.

Thp evidence shows that Hamp Robinson recorded his patent on November 7, 1905. We believe this to be a clear indication that as of that time he had not abandoned his interest in the property. Maurice Parker, 76 years old at the time of trial, testified that Hamp Robinson had lived on the tract in question for as long .as he could remember. He recalled that Robinson moved his home three or four times to different locations on the tract prior to 1933. This Court was impressed with the great familiarity that this witness demonstrated with regard to the Robinson family and the tract itself. The Reverend Tillotson, 66, also testified that he personally knew Hamp Robinson, that he purchased property for his church from Robinson in 1933, that Robinson lived on and farmed portions of the tract for as long as he could remember, that no one ever questioned Robinson’s ownership of the land and that at the time the church was built (1933) Robinson’s house had been there a long time.

We note also that Robinson exercised various acts of ownership during this period. In 1918 Robinson sold a portion of the tract to Gilbert and Anna Ernest; he sold another portion to Nelson Fields in 1920, just to name a few.

We believe that based upon the testimony of the witnesses concerning Robinson’s living on the property and the general community attitude regarding his ownership at that time, together with the evidence of various .acts of ownership contained in the public records, the trial judge could have reasonably concluded that Robinson possessed the property from the time the patent was issued.

Conclusion

The trial judge concluded that “plaintiffs have not proved their title to subject property good against the world.” (Record, P. 453). In examining the evidence, we find no error in this conclusion. We conclude that appellants’ claim to ownership based upon the Gause Tax Deed must fall, since that deed is based upon a tax sale without assessment which is an absolute nullity. Appellants’ chain of title contains a break in its first link, the Gause Tax Deed, which was neither ratified by the confirmation proceeding nor rectified by peremption and/or prescription. Therefore appellants have failed to meet their burden of proof.

SALMEN DEED

On appeal, appellants have not pressed their claim to ownership based upon the Salmen deed. In brief, counsel for appellants indicated they would rely “primarily” on the Gause deed. We note, in passing, however, that the Salmen deed cannot be relied upon to establish ownership to the Robinson tract since the tax deed to Salmen refers to an entirely different parcel of property located in Section 33, Township 9, Range 14, and there is no proces-verbal contained in the public record to indicate any error was made in that description. This conclusion is further supported by tax receipts introduced by the defendants that Hamp Robinson paid taxes on his tract for many years following that sale.

For the above and foregoing reasons, the judgment of the trial court is affirmed, appellants to pay all costs.

AFFIRMED.

      . Assuming arguendo that none of the defendants received any right of possession from Elijah Cooper, an heir of Hamp Robinson from whom they purchased the property.

      . Since we find the property was sold without assessment and this defect could not be cured, we find it unnecessary to determine whether peremption has been interrupted by the continuous possession by the heirs and assigns of Hamp Robinson since 1894.


author: BAILES, Judge.

text:
    Ronald G. CIRCELLO v. Beverly Beal CIRCELLO.
    No. 12452.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.

      J. P. Mauffray, Jr., Jena, of counsel for plaintiff-appellant Ronald G. Circello.
    John F. McKay, Baton Rouge, of counsel for defendant-appellee Beverly Beal Circel-lo.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

Ronald G. Circello, plaintiff-appellant, appeals from the judgment of the court a quo denying his disavowal of the child, Harold Jason Circello, born of appellant’s marriage to defendant-appellee, Beverly Beal Circel-lo. This action was commenced by plaintiff by petition filed March 2, 1977, in which he sought a separation from bed and board from defendant-wife, on the ground of having lived physically separate and apart for one year. By way of answer and reconven-tional demand defendant-wife alleges, inter alia, that her husband abandoned her and she is entitled to be awarded a judgment of separation from bed and board, alimony for herself and support for the child.

In plaintiff-appellant’s answer to the re-conventional demand of his wife, he in effect filed a general denial and affirmatively alleged that the child known as Harold Jason Circello is not his child and that someone else is the child’s father. On the same day that plaintiff answered the reconven-tional demands of defendant-wife, he filed a supplemental and amended petition in which he alleged that the defendant is guilty of adultery and prays for a divorce, and alternatively for a judgment of separation from bed and board. On April 22, 1977, plaintiff filed an action en desaveu in which both the child and the mother, defendant-appellee, were made defendants. Issue was joined in due course.

Finally, on March 7, 1978, plaintiff-appellant filed a petition for divorce on the ground that more than two years had elapsed since plaintiff and defendant lived together and prayed for a divorce between them. No answer was filed by defendant to this petition. It should be noted, however, that plaintiff had sought a divorce on the ground of adultery to which an answer had been filed. At the time of trial proof was made, without objection from defendant, that the parties had not cohabited for a period of time in excess of two years. Thus, at the time of trial there was before the court an action for a divorce, for separation from bed and board and the action for disavowal of the child. After trial and the matters were submitted for decision, the trial court awarded a divorce between the parties and denied plaintiff the disavowal of Harold Jason Circello.

Plaintiff timely filed a motion for a new trial limited to that portion of the judgment decreeing that plaintiff is the father of the child. In his motion for a new trial plaintiff alleges that since the trial material evidence important to the cause has been discovered which he could not with due diligence have discovered before or during the trial. This evidence is detailed as being business records of the apartment complex where the parties lived which would show that plaintiff moved out of his apartment where he and the defendant resided together on February 28, 1976, and that several of the witnesses who appeared for defendant did not live in the apartments on the dates so testified to by them, and finally that a certain witness was available now to testify that plaintiff moved to Melville, Louisiana, on February 29, 1976 and remained there throughout the month of March, 1976. The motion for a new trial was denied.

The sole issue on this appeal is the correctness of the judgment of the trial court decreeing Harold Jason Circello to be the child of plaintiff-appellant, Ronald G. Circello.

Civil Code Article 184, as amended by Section 1, Act No. 430 of 1976 provides:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

And Civil Code Article 187, as amended, states:

“The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.”

There is no dispute between the parties that they were married on February 21, 1976, and that the child whose paternity is questioned by appellant was born on December 6, 1976.

The theory of the appellant’s case is that he last resided and cohabited with the ap-pellee-mother on the night of February 24, 1976; that she told him on February 25, 1976, she did not love him enough to be married to him and that she was going back to her mother’s; that according to the doctor who attended the appellee-mother the child was conceived on or about March 18, 1976, which was subsequent to their last cohabitation.

The position of the appellee is that she separated from plaintiff on February 27, 1976, because of his mental cruelty toward her; that she returned to him on two or three occasions; and that she last cohabited with her husband on the night of March 16, 1976, in their apartment where they had resided together.

No useful purpose would be served in detailing the testimony of the plaintiff and his witnesses as opposed to that of the defendant and her witnesses. The pivotal issue of the case is whether plaintiff and defendant cohabited after her menstrual period extending from March 4 through March 10, or thereabout. The evidence proffered by each party is in conflict. The trial judge did not assign written reasons for the judgment (his oral reasons were not transcribed because of recorder tape malfunction), however, by reason of the judgment rendered he resolved this conflict in favor of defendant’s position that in fact plaintiff and defendant did cohabit as late as approximately March 16, 1976, or the trial judge determined that the plaintiff had not rebutted the presumption of paternity prescribed by Civil Code Article 184.

The trial judge had the benefit of hearing live testimony from the witnesses who appeared in court. This afforded him the opportunity to evaluate their testimony and determine their respective credibility which we are unable to do from the bare record.

If the trial court determined that plaintiff did not overcome or rebut the presumption of legitimacy prescribed in Civil Code Article 184, we concur. On the other hand if by reason of his superior position of being able to observe the witnesses and evaluate their demeanor and credibility on the stand he resolved the testimonial conflict in favor of the defendant, we are not at liberty to disturb his finding. We hold that there is credible evidence herein which reasonably supports the conclusion of the trier of fact, and certainly the finding of the trial court is not clearly wrong. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Turning our attention now to the denial of appellant’s motion for a new trial and the correctness of the ruling, suffice it to say that even if the trial court had granted a new trial and admitted the “newly discovered” evidence, in view of the testimony of the plaintiff and of at least one other of his witnesses (Thomas Milton Chapman) that the plaintiff was the lessee of Apartment No. 28 through March, 1976, as well as the testimony of plaintiff’s mother, the “newly discovered” evidence would have injected conflict within the plaintiff side of the evidence. It could not have been a determining factor in favor of plaintiff. We conclude the trial court correctly denied the motion for a new trial.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


author: ELLIS, Judge.

text:
    James E. KEMP, d/b/a Capital Leasing Company v. Julian E. FERNANDEZ.
    No. 12527.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.
    Edward W. Gray, Baton Rouge, for plaintiff-appellee.
    Triche, Sternfels & Nail, Risley C. Triche, Napoleonville, for defendant-appellant.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge.

On September 10, 1974, James E. Kemp, doing business as Capital Leasing Company, leased certain equipment to Tidewater Dredging and Construction Company. Julian E. Fernandez personally guaranteed the performance of the lessee’s obligations thereunder, binding himself jointly, severally and in solido with Tidewater.

On July 2, 1975, Tidewater filed a petition in bankruptcy, which constituted a default under the terms of the lease. On July 30, 1975, this suit was filed against Mr. Fernandez under the surety agreement executed by him, on September 10, 1974. Judgment was rendered in favor of plaintiff and against Mr. Fernandez for $36,-666.46, with eight per cent interest from date of judicial demand, and 15 per cent of the principal and interest due as attorney’s fees. This judgment was not appealed and is now final.

In the bankruptcy proceedings, plaintiff filed a claim for $36,666.46 due under the lease, alleging it to be an unsecured claim. Apparently, the trustee in bankruptcy took the position that the lease was, in fact, a lease-purchase agreement although the lease contract itself is one of pure lease. After some negotiations, plaintiff agreed to file an amended proof of claim in which he alleged the contract to be one of lease or lease-purchase, and claimed both a lessor’s lien and a vendor’s lien against the leased property.

The leased property was sold by the trustee for $13,000.00. After deduction of a $1,300.00 commission, $11,700.00 was paid to plaintiff. Mr. Fernandez appeared in the bankruptcy proceeding and opposed the payment to plaintiff on the basis that plaintiff had no lien on the property since the contract was actually one of lease and not lease-purchase, but to no avail.

Apparently the judgment obtained against defendant was made executory in St. Mary Parish, and attempts to execute thereon were made, by garnishment and by a judgment debtor rule. This record reflects that a judgment debtor rule was also filed in Assumption Parish.

The case comes before us on a rule for an injunction to prevent plaintiff from making any further attempts to execute on the judgment against the defendant. A preliminary injunction was initially issued by the trial judge, and subsequently dissolved. It is from the judgment of dissolution that defendant has appealed.

The main argument made is that the sale of the leased property by the trustee in bankruptcy resulted in the destruction of the object of the lease and the termination of the leasehold interest, which it is alleged, has the effect of cancelling the judgment against Mr. Fernandez. Alternatively, defendant sought credit for various payments allegedly made after judgment, including the $11,700.00 paid in the bankruptcy proceeding.

Section 21(c) of the lease contains the following language:

“(c) Upon any default, Lessor shall have the right, at its option, but shall not be obligated, to do one or more of the following: ... (3) to sell any or all of the equipment at public or private sale for cash or on credit and to recover from Lessee all costs of taking possession, storing, repairing and selling the equipment, plus an amount equal to 10% of the actual cost to Lessor of the equipment sold, and the unpaid balance of the total rent for the initial term of this lease attributable to the equipment sold, less the net proceeds of such sale: .
“Notwithstanding any action taken by Lessor, including taking possession of any or all of the equipment, Lessee shall remain liable for the full performance of all its obligations hereunder, but if Lessor terminates this lease in writing, as to any item of equipment, Lessee shall not be liable for rent for such item accruing after the date of such termination.
“In addition, Lessee shall pay Lessor all costs and expenses incurred by Lessor in exercising any of its rights or remedies hereunder, including reasonable attorney’s fees to be fixed at not less than 15% of the amount in default or $25, whichever is more.”

In view of the foregoing provision, we think the plaintiff-lessor was within his rights when he permitted the characterization of the transaction as a lease-purchase by the trustee and the subsequent sale thereof, since he had the right to sell the leased property in any event. We therefore find defendant’s main contention to be without merit.

However, we think the judgment below must be reversed. Article 2298 of the Code of Civil Procedure provides, in part:

“Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the judgment debtor or to a third person claiming ownership of the seized property:
“(2) When subsequent to the judgment payment has been made, or compensation has taken place against the judgment, or it has been otherwise extinguished. If the payment, compensation, or extin-guishment is for a part of the judgment, the injunction shall be granted to that extent, and the execution shall continue for the amount of the excess; . . .”

Since the defendant is claiming certain credits which were allegedly paid after the judgment was rendered, he is entitled to an injunction as to that part of the judgment which is excessive as a result of the credits.

Plaintiff concedes, in brief, that defendant is entitled to a credit of $11,700.00, as a result of the sale, and to an additional credit of $5,215.54 which was received by him from the trustee, although no proof of the latter credit appears in the record. Defendant further alleged payment of some $8,000.00 by himself or Tidewater, but no proof thereof appears in the record. Since the record is incomplete, we will remand the case to the trial court so that the full extent of the credits due defendant on the judgment against him may be determined at a hearing. An injunction should then issue to prevent execution of the judgment for the excess portion thereof. Plaintiff may execute on the judgment for the balance due thereunder.

The judgment appealed from is therefore set aside, the preliminary injunction reinstated, and the case is remanded to the trial court for further proceedings in accordance with the views herein expressed, and according to law. Costs of this appeal shall be paid by plaintiff, with all other costs to await final determination of this rule on its merits.

REVERSED AND REMANDED.