author:
GUIDRY, Judge:
      FORET, Judge,

text:
    Loveless CHAISSON and Elvina Chaisson, Plaintiffs-Appellees, v. Ena Martin DOMINGUE et al., Defendants-Appellants.
    No. 6732.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Granted Feb. 23, 1979.
    Domengeaux and Wright, Richard C. Broussard, Lafayette, for plaintiffs-appel-lees, Loveless and Elvina Chaisson.
    Davidson, Meaux, Sonnier & Roy, V. Farley Sonnier, Lafayette, for defendants-ap-pellees, Lloyd Domingue, Ena Domingue and Louisiana Farm Bureau.
    Allen, Gooch & Bourgeois, St. Paul Bourgeois, IV, Lafayette, for defendants-appel-lees, Continental Insurance Co.
    Caffery, Duhe, Oubre and Gibbens, Johnnie Mack Duhe, New Iberia, for defendants-third-party plaintiffs-appellants.
    Voorhies and Labbe, Richard D. Chap-puis, Lafayette, for third-party defendants-appellees, Horace Mann Group.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge:

This is an appeal from the granting of a motion for a summary judgment by the trial court in favor of the third party defendant in this action, Horace Mann Insurance Company (Horace Mann). The sole issue presented on appeal is whether there existed a genuine issue of material fact on the question of coverage under the policy issued by Horace Mann, so as to have precluded the use of summary judgment.

This suit arose out of an accident involving Mrs. Ena Martin Domingue, who allegedly accidentally fell on Mrs. Elvina Chaisson while they were attending a band concert held at Scott Elementary School. Mrs. Chaisson allegedly sustained injuries as a result of the accident. Mrs. Domingue was employed by the Lafayette Parish School Board as a teacher at Scott Elementary at the time of the concert, and the band was made up of students from that school. The concert took place at Scott Elementary School, well after school hours on the night of May 8, 1975. The public was invited to attend and there was no admission charge.

Mr. and Mrs. Chaisson brought suit against Mr. and Mrs. Domingue (appellants herein) and their homeowners insurer for the personal injuries, medical expenses and lost wages allegedly suffered by Mrs. Chais-son as a result of the accident. Mrs. Do-mingue thereupon filed a third party demand against Horace Mann, her professional liability insurer, asserting that it was part of her professional duties to attend the concert, and that consequently her actions while there were covered by the terms of her policy. Horace Mann alleged that attendance at the concert was not a part of Mrs. Domingue’s duties, and filed a motion for summary judgment seeking dismissal of third party plaintiffs’ action on the ground that the policy provided no coverage to Mrs. Domingue under the circumstances of this case.

After introducing a certified copy of the insurance contract in dispute along with two depositions of Mrs. Domingue and the deposition of Elois Comeaux, the principal of Scott Elementary School, Horace Mann alleged that there was no genuine issue of fact material to a finding that its policy provided no coverage to Mrs. Domingue under the circumstances and thus it was entitled to a judgment of dismissal as a matter of law. The trial court granted summary judgment in favor of Horace Mann. Third party plaintiffs have appealed.

Mrs. Domingue’s deposition is quite clear on the question of whether her employer had directed her to attend the concert on the date of the accident.

“Q. Now, it was not mandatory for you to attend that performance that night, was it?
A. It was not mandatory. (Tr. pg. 83)
Q. Were you asked by any school authorities, including the principal, to attend this specific concert?
A. Not at that particular time. But whenever we have functions, they like us to be there. (Tr. pg. 85)
Q. . .In other words, when you went there (to the concert) were you required to perform any function as a teacher, at the band concert?
A. Pleasing my class.
Q. But, other than that?
A. No.” (Tr. Pg. 150).

There is no discrepancy between this testimony by Mrs. Domingue and that of her principal, Mr. Comeaux.

“Q. Mr. Comeaux, I guess you would consider it then to be a normal activity for a teacher to attend functions of this nature?
A. What do you mean by normal?
Q. Well, not unusual?
A. No, it’s not unusual. It’s not — but it’s not required, you know. I mean I want you to remember that. It is not required.
Q. Did Mrs. Domingue regularly attend school functions when she was a teacher?
A. Not regularly, no. She did attend some, but not regularly. But that particular night, she had been invited as a spectator.” (Tr. pgs. 189 and 190).

The uncontroverted testimony is clear: Mrs. Domingue was not required to attend the concert nor was she required to act in any official capacity at the concert or to sit in any designated area, or to wear any distinguishing uniform. She was not paid or compensated in any manner for her attendance. She was not acting as a moderator, director or chaperone for any of the students participating in the concert. Appellant’s attendance at the concert in no way affected her ratings as a teacher nor in any manner contributed to an evaluation of her professional performance while at the school. By her own testimony, Mrs. Do-mingue admitted that she went to the concert because she personally enjoyed that type of entertainment.

The burden of proof in a motion for summary judgment rests upon the movant to show by convincing proof that there is no genuine issue as to a material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Arts. 966, 967.

Where convincing proof has been produced, then the burden shifts to the opponent to show by receivable evidence that a genuine issue of material fact does exist, and the opponent must show some real controversy as to a material fact. LSA-C.C.P. Art. 967; Duplechain v. Houston Fire & Casualty Insurance Co., 155 So.2d 459 (La.App. 3rd Cir. 1963). Appellant in this case failed to set forth any specific fact showing that there was a genuine issue for trial. La. Farm Bur. Mut. Ins. Co. v. State Farm, etc., 348 So.2d 1311 (La.App. 3rd Cir. 1977). With the exception of a memorandum opposing the granting of summary judgment, appellants offered no evidence by affidavit, deposition or otherwise to satisfy their burden.

In the instant ease there is no dispute as to any of the facts material to a determination of Mrs. Domingue’s status at the time of accident, i. e., whether at the time she was acting in her professional capacity as a teacher or member of the instructional, supervisory or administrative staff of Scott Elementary School. The material facts being undisputed there only remains to be determined as a matter of law whether or not the Horace Mann policy provided coverage to her under such undisputed factual circumstances. This being so the matter is appropriate for adjudication by summary judgment. Ocmond v. Eserman, 259 So.2d 600 (La.App. 4th Cir. 1972, writ refused).

Considering the above we affirm the judgment of the trial court. The insurance policy is succinct in limiting coverage to liability for damage resulting from claims made against the insured . . . “arising out of the assured’s activities in his professional capacity as a teacher or member of the instructional, supervisory or administrative staff of any school . . as defined in the policy. (See footnote 1). The evidence offered in support of the motion establishes that the appellant was not so engaged at the time of the accident.

For the above and foregoing reasons, the judgment of the trial court is affirmed and costs of this appeal are assessed against the appellants.

AFFIRMED.

FORET, J., dissents and assigns written reasons.

FORET, Judge,

dissenting:

I am unable to agree with the majority. In my mind, the majority places an extremely narrow interpretation on the policy phrase in question: “activities in a professional capacity”. The majority, apparently, would extend coverage under the Horace Mann policy only when a teacher is engaged in school activities which are required of her as a job condition. I cannot agree. The policy provides that “activities of the assured in [her] professional capacity” wherever used, shall mean “activities of the assured in the course of [her] duty as an Educator, Administrator . . ”

The key word is “duty”. Apparently the majority concludes that in order for coverage to be effective under the Horace Mann policy, “duty” means only those activities which are required of the assured as a job condition of her position as a teacher. However, nowhere in the policy can be found a provision expressly excluding from coverage any school or school-related activities of the assured which are not required of her in her professional capacity, and as a condition of her employment.

In my mind, a conscientious teacher would engage in many activities with relation to her students, which are not required of her as a job condition. We are dealing here with a case involving a fifth grade teacher. Personal relationship and rapport with children of such tender age can be greatly enriched by those little things which she can do for them on a personal basis, even though not required of her as a job condition.

Mrs. Domingue, the assured, has testified in her deposition that had she not been a teacher at the Scott Elementary School, she would not have been in attendance at the band concert that night; that she was encouraged by her supervisors and the school board to attend such functions; that she felt that such attendance made her a better teacher and established a better relationship with her students because they were pleased to see her in attendance at such functions.

The principal, Mr. Eloi Comeaux, supported Mrs. Domingue’s testimony. He said that attendance at such functions was a normal and customary activity for a member of his teaching staff, although Mrs. Domingue was not required to be there the night of the alleged accident; that the duties of the teacher include activities other than instructing and teaching pupils; if teachers are in attendance at such functions, it would not be unusual for them to act as chaperons, ushers, or referees tó quiet any unruly children.

For the foregoing reasons, I am of the opinion that Mrs. Domingue was acting in the course of her duties as a teacher of Scott Elementary School at the time of the alleged accident. Accordingly, she was covered by the Horace Mann policy at that time. I respectfully dissent.

      . The pertinent coverage provisions of the policy are as follows:
      A. To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages resulting from any claim made against the insured ARISING OUT OF THE ASSURED’S ACTIVITIES IN HIS PROFESSIONAL CAPACITY AS A TEACHER OR MEMBER OF THE INSTRUCTIONAL, SUPERVISORY OR ADMINISTRATIVE STAFF OF ANY SCHOOL, college or other educational establishment and caused by any acts or omissions of the insured or any other person for whose acts the insured is legally liable, (emphasis added)
      IV. DEFINITION OF “ACTIVITIES IN A PROFESSIONAL CAPACITY.” The phrase “activities of the assured in his professional capacity” wherever used shall mean activities of the assured in the course of his duty as an Educator, Administrator, Member of a Teaching Staff, Student Teacher or other employee of a school system, subject to the exclusions of this policy.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Ida BEAL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9479.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1978.

      Garland R. Rolling, Metairie, for plaintiff-appellee.
    James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

The only issues presented in this case relate to the quantum of the award in favor of plaintiffs herein. The defendant, New Orleans Public Service, Inc. (hereafter called NOPSI), stipulated to liability at trial, as well as to several items of special damages, so that the measure of damages was the only question to be decided by the trial court as well.

This suit was instituted by plaintiffs to recover for personal injuries and property damage arising out of a vehicular collision between plaintiff Elliot Beal’s automobile and one of defendant NOPSI’s buses on October 16, 1975. These damages were incurred when one of defendant NOPSI’s buses struck plaintiff’s automobile from the rear as Beal was beginning to negotiate a left turn into his driveway in the 3600 block of Freret Street in New Orleans. As a result of being struck from the rear, Beal’s automobile crashed into the corner of his house and the fence around it.

The following awards of special damages were stipulated prior to trial, and were included in the judgment below:

Dr. Berkett $150.00
Optometrist 88.00
X-rays 82.50
Touro Infirmary 118.50
Dr. Melvin Sternberg 20.00
Ambulance service 45.00
Midas Muffler 31.68
Other damage to car 734.21
National Fence Corp. 52.50
Lost wages for 12 workdays missed 766.00

Also awarded by the trial court, about which award there was some dispute, were the following:

Drugs $ 42.00
Damage to house (including permanent exterior blemish due to mismatched bricks) 1,000.00
General damages for past and future pain and suffering 8,500.00

Defendant NOPSI has appealed from the trial court’s judgment, asserting that the award of $8,500.00 for general damages in this case was excessive and an abuse of the trial judge’s discretion. Similarly, NOPSI also argues that $1,000 for damage to the house was excessive. Additionally, NOPSI contends that the award of $42.00 for drugs was erroneous because no evidence was introduced to prove that Beal had made any expenditures for drugs.

Plaintiffs filed an answer to NOPSI’s appeal, asking for an increase in the $1,000.00 award for damage to the house to $1,420.00, the maximum cost of repair shown by the evidence. In addition, plaintiffs argue that an award si ould have been made for loss of future earnings since Beal was forced into early retirement by this accident.

There was no abuse of discretion by the trial court in the amounts of the awards for various items in this case. From the evidence presented there is no showing that the amounts questioned on this appeal are either excessive or inadequate. Therefore, under the doctrine set forth in Coco v. Winston Industries, 341 So.2d 332 (La.1976), the judgment is affirmed.

At the time of the accident, Mr. Beal was a sixty-year old teacher at Carter G. Wood-son Junior High School. He was taken from the scene of the accident by ambulance to Touro Infirmary where, after regaining consciousness, he was examined and released by Dr. Melvin Sternberg, an associate of his family physician, Dr. Melvyn Kossover. According to his own testimony, and that of his wife, he was unconscious from shortly after impact until he came to the Emergency Room at Touro. According to his wife and the ambulance records, he received oxygen on the way to the hospital.

Mr. Beal was referred to Dr. Berkett, an orthopedist, by his family physician, and the deposition of Dr. Berkett, and several medical reports prepared by him, were introduced into evidence. According to Dr. Berkett, Beal’s symptoms were referable to his head, neck, back, legs, and fingers. He had a limitation of his neck motion in lateral bending to the right, numbness in the fingers of both hands, with a particularly swollen right index finger, and sharp pains in his legs. In addition, he had a congenital deformity in his cervical spine which Dr. Berkett expected might be more affected by this accident than a normal neck. He recommended Valium and Tylenol, but did not prescribe them for Beal because he was informed that Dr. Kossover had already done so. He referred Beal to therapy of heat massage to his neck, but did not recommend traction because of the pre-exist-ing neck problem.

One week after his first visit with Dr. Berkett, Beal’s condition had not changed noticeably. However, after two weeks, when he saw Dr. Berkett again, he had improved enough to return to work, although he complained of discomfort when he had' to stand for long periods of time. He was also still having trouble with his finger. His condition gradually improved until January 21, 1976, when he saw Dr. Berkett for the last time, and was told to return if he had any more symptoms. Dr. Berkett stated that there was no particular reason for Beal to take an early retirement, although he might have more strains on him since the accident.

Defendant NOPSI suggests that the injuries sustained by Mr. Beal would be more than adequately compensated with $5,000, and that is the highest amount which could be awarded for these injuries without an abuse of the trial court’s discretion. NOPSI asserts specifically that the trial judge ignored the rule of law that the failure of a party to call a treating physician, or satisfactorily, explain his absence, creates a presumption that such physician’s testimony would be unfavorable. Shamie v. Bowsky, 152 So.2d 843 (La.App. 4th Cir. 1963). However, as counsel for the plaintiff points out, such a presumption is rebuttable and may be overcome when the sufficiency of the other evidence requires it. Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973) w.d. 288 So.2d 356. The extent of Mr. Beal’s injuries seems adequately proven through the testimony and medical reports of Dr. Berkett, which can hardly be said to have been overwhelmingly in Mr. Beal’s favor.

Counsel for NOPSI cites several cases featuring injuries similar to those sustained by the plaintiff here, in which the awards for general damages ranged from $2,000 to $5,000. Likewise, counsel for plaintiff cites several similar injury cases in which the awards were substantially higher than $8,500. As we have been instructed in Coco, supra, these previous awards should only be used as an aid to determine if there has been an abuse of discretion, as each case will stand alone on its facts. Furthermore, and more important, in order to lower an award, a Court of Appeal must determine that the award is above the highest point which is reasonably within the trial court’s discretion. None of the cases cited here indicate that their awards are at the highest acceptable level. Under the circumstances the award of $8,500 in general damages should be affirmed.

The $42 allowance for drug expenses appears reasonable in this case. It is true that no evidence in the form of receipts were introduced into evidence, and the prescribing physician (Dr. Kossover) did not testify. However, Dr. Berkett testified that he would have prescribed the same drugs (Valium and Tylenol), but did not when he was informed that Mr. Beal was already taking them. Dr. Berkett further testified that he later recommended that Mr. Beal continue taking this medication.

Mr. Beal stated that his initial prescription cost approximately $14, and he refilled it about three times. On this basis the trial judge awarded $42; and although the evidence on this point left something to be desired, in light of the fact that such medication was clearly recommended (by Dr. Berkett), and the small amount involved, the award is reasonable.

Both NOPSI and the plaintiffs complain about the award of $1,000 damage to plaintiff’s home. NOPSI arrives at what it contends is the proper figure, $815.00 by adding $315.00, the amount paid to Mr. Joseph Pepin for partial repairs, and $500.00, the figure it determined was a reasonable estimate for the remaining repairs necessary. The Beals, on the other hand, demand an increase to $1,420.00, which includes the $315.00 paid to Pepin and an estimate for completion of $1,105.00 by Owen Reed.

NOPSI’s primary objection to the Reed estimate is that it was made in June 1977, some eighteen months after the accident, and only a few days prior to trial. Thus, by trying to establish that prices in construction have doubled or tripled in the past few years, and that Reed was calculating on a 30% markup for himself, NOPSI offers $500.00 as a reasonable estimate at the time of the accident, or shortly thereafter. The argument about the passage of time is a valid one, but it is unreasonable to expect someone to be able to get a repair of this sort done without the contractor demanding a standard markup for himself. Thus, it appears that the trial judge weighed these factors, as well as the fact that there is testimony that the brick repairs could only be “as near a match as possible”, in arriving at what he considered to be a just reward. There was no abuse of discretion in allowing for a reasonable contractor’s markup, or in refusing to allow plaintiff to recover all of the increased costs produced by delay.

Plaintiff also argues that the trial judge erred in not allowing damages for loss of earnings occasioned by plaintiffs early retirement. It was shown that Mr. Beal retired at age 62 rather than 65 as he normally would have, and that his retirement income was $134 per month less than his salary. Consequently, plaintiff claims $134 per month for three years as a result of this accident. The problem with this argument is that there was absolutely no evidence that the pain and discomfort from this accident necessitated plaintiff’s early retirement. The only support for this argument was Mr. Beal’s own self-serving statements. These alone cannot serve as the basis for such an award, and the trial judge was correct in disallowing this claim.

The record reflects no abuse of discretion on the part of the trial judge in this case. The awards made were within the reasonable limits of the trial judge’s discretion. Therefore the judgment below is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    AL SMITH’S PLUMBING & HEATING SERVICE, INC. v. RIVER CREST, INC., General Contractors.
    No. 9493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.

      Lemle, Kelleher, Kohlmeyer & Matthews, William R. Forrester, Jr., New Orleans, for A1 Smith’s Plumbing & Heating Service, Inc., plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Eileen Gleason Shaver, New Orleans, for Fidelity & Deposit Co. of Maryland, third party defendant-appellant.
    John P. Nelson, Jr., Irving H. Koch, New Orleans, for River Crest, Inc., defendant-ap-pellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This appeal involves claims and counter claims between River Crest, Inc., a general contractor, and A1 Smith’s Plumbing & Heating Service, Inc. (Smith), his plumbing/roofing subcontractor, that arise from the alleged failure to perform the subcontracts.

As background, River Crest, Inc., agreed to construct an apartment complex for the Housing Authority of New Orleans (HANO), a federal agency, for $471,900. River Crest projected its direct costs to complete this job at $400,519; its overhead at $40,050 (10%); and its profit at $31,331. Signed June 6, 1974, the contract called for completion in 270 days; however, when delays were encountered in obtaining building permits, HANO granted a 45-day extension. Work commenced August 25, 1974 and at that time it was anticipated the job would be finished by June 1, 1975. Unfortunately River Crest erred. The job was accepted December 8,1975 at a direct cost (labor and material for all subcontracts) of $498,570.72, which, in addition to washing out the profit and overhead River Crest had planned to cover with the contract price, also resulted in a $26,670.72 out-of-pocket loss. Needless to say when the plumbing and roofing subcontractor filed this lawsuit, River Crest was ready with a reconventional demand.

Initially, Smith filed suit against River Crest for $28,021.05, the balance due for work performed under both subcontracts and for damages in the sum of $20,000. Smith alleged it walked off both the plumbing and roofing jobs before completion because River Crest arbitrarily withheld payment for work that had been completed under both agreements.

River Crest answered denying these assertions and reconvened for damages caused by the alleged breach of Smith, specifically (1) cost of completion of the plumbing and roofing subcontracts; (2) loss of profit; (3) additional overhead and demur-rage that accrued due to a long delay in completion and attorney fees. Fidelity and Deposit Company of Maryland (Fidelity), Smith’s performance bond underwriter, was also joined as a party defendant under its solidary liability with the defaulting contractor.

The bonding company denied responsibility and alternatively pleaded a limitation of liability to $65,500, the amount bonded.

After a five-day trial, the district judge concluded Smith had actively breached both contracts although it did not act in bad faith in so doing and awarded these damages:

Cost to complete plumbing contract $35,800.00
Cost to complete roofing contract 3,024.00
Joist repair 1,418.00
Wage violations by Smith 1,175.00
Loss of profit (initially anticipated) 32,000.00
$73,417.00

The judgment limited Fidelity’s liability to $65,500 of this amount. Both defendants in reconvention were cast for $2,500 attorney fees. Fidelity obtained a third party judgment against Smith indemnifying it for any sums it must pay out because of rendition of the judgment on the reconventional demand. Smith and Fidelity have appealed; River Crest has answered the appeal.

Appellants have not conceded that Smith actively breached the subcontracts, but they have not urged reversal of that part of the judgment holding Smith liable for the amounts River Crest paid to Crescent City Plumbing and Flat Top Roofers to finish both the plumbing and roofing contracts. Nor do they challenge the amounts.

The evidence fully supports the active breach conclusion reached by the trial judge. Not only did Smith fail to complete the plumbing required, but his workmen additionally complicated matters by substandard performance. To illustrate, in installing plumbing stacks Smith’s workmen cut large holes in the supporting floor joists that seriously weakened the structure. In one instance a 2-by-12-inch joist was cut to 2 by V2 inches. Eventually many joists had to be repaired or replaced by a carpenter hired by the general contractor. Additionally ventings for the gas heaters and the water heaters were improperly installed. Further Smith used P traps throughout when the contract called for drum traps, and this required River Crest to renegotiate this item with HANO before its acceptance.

From the evidence it appears Smith ran into financial difficulties in the course of performance and River Crest assisted with generous payments until it reached a point where it was concluded the stage of completion lagged way/ behind the percentage of the contract price previously advanced. Therefore we conclude Smith breached the agreement when it walked off the job without cause and affirm the completion costs awards itemized above. Without prolonged discussion we also affirm the $1,418 allowed for remedial work because the need to repair joists is apparent and the cost incurred undisputed. Fidelity is only solidarily liable for the expenditure to complete the plumbing contract and it did not bond the roofing job.

We next consider the loss of profit item. In this connection it is also relevant to discuss three items River Crest seeks to have added to its judgment by this court, namely: (1) $12,108 additional direct job maintenance expense incurred because the job was not concluded until approximately four months after the scheduled completion date; (2) $3,584 demurrage for which HANO billed River Crest; and (3) additional superintendent costs of $3,898.54. All of these damages of necessity must stem from the breach by Smith if it and its surety are to be held liable for them.

It is interesting to note that in written reasons for judgment the trial court found as a fact:

“ * * * [Tjhat by far, the greatest cause of the delays encountered during the construction are attributable to numerous reasons. For example, delays were encountered in the delivery of materials. Furthermore, Crescent City Plumbing, the replacement subcontractor, caused many such delays which are well documented in the job logs. And River Crest itself contributed to the delay in the project completion by its failure to replace Smith timely. River Crest’s contention that Smith’s actions caused a loss of momentum which in turn caused the delays has no merit. * * * ”

There is nothing in the record to establish how much of the delay in completion is solely attributable to Smith. Warren Ro-dick, a federal inspector charged with responsibility of inspecting this job for the agency, testified at one point that the plumbing contractor was directly responsible for a delay of approximately three months. On cross-examination he admitted this was a “wild guess.” He also found that long after Smith was gone there was inadequate supervision and an insufficient number of skilled workmen on the job. Steven Sears, general job superintendent for River Crest, produced a log that he kept while this construction was in progress and from this it can be noted that other subcontractors were not performing within the time frame the general contractor had projected. Many trial hours were devoted to pointing out that Smith still had not completed the structural roughing-in stage by March 13, 1975, the day plaintiff’s men walked off the job. It has been argued that this in itself was sufficient to shut down the job for several months. However, before the walls could be closed the electrical roughing-in also needed completion. We know from Sears’ log that the electrical work in Building A (one of the two buildings covered by the contract) started January 6, 1975, and there is no evidence as to the date the electrical roughing-in work was completed or that its performance was delayed by Smith’s default.

Like anything involving the federal government, this contract required exhaustive record keeping and paper work. For example, we know from the evidence that each subcontractor had to keep and turn in wage and hour logs so that HANO officials, in the spirit of benevolent paternalism, could make sure each worker was properly paid. From the Sears’ log and the wage and hour tallies, it would appear that River Crest could have precisely reconstructed which subcontractor caused what delay. The silence as to timeliness of performance by all other subcontractors on the project is conspicuous.

We also make this same observation with respect to the cost of completion. River Crest has records of the total costs to perform the job. Had these been produced and River Crest demonstrated that every subcontractor but the roofer and the plumber completed their contracts at the figures projected by the general contractor in submitting its bid (or less), and within the time anticipated, we would agree that Smith should be cast in judgment for loss of profit and all other additional expenses attributable to the delay in completion. It is apparent from the evidence that the subcontracts were not all let when River Crest signed with HANO. In fact the record bears out that at the time of River Crest’s bid based upon projected costs the low bids on the plumbing job were $3,000 less than that of Smith’s, to whom the contract ultimately was awarded. To this extent the overhead and profit factors were overstated.

Lost profits are recoverable in an action for breach of contract where the amount can be proved with reasonable certainty. George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954). Loss of profit awards may not rest on speculation or conjecture (Ferguson v. Britt, 191 La. 371, 185 So. 287 [1938]; Pelican Printing Co. v. Pecot, 216 So.2d 153 [La.App. 4th Cir. 1968]), unless direct evidence is not available to establish this element of damage. For example, where a loss of actual profit in an uncompleted prime contract is not computable, the aggrieved party may resort to customary or foreseeable profit as a measure of damage. Galloway v. Tenneco Oil Company, 313 So.2d 317 (La.App. 4th Cir. 1975). Also the trial judge specifically found that Smith’s breach was not in bad faith so that recovery for damages by River Crest is limited by C.C. art. 1934(1).

Applying this law to our facts, we hold the evidence adduced fails to support the claim. Certainly Smith delayed performance. But to what degree? The best evidence rule requires a plaintiff to establish his demand with the best proof the nature of the thing would permit. As we have previously pointed out, River Crest should have within its records what proportion of the delay, additional expense, de-murrage and loss of profit is attributable to the Smith breach. These records would reflect whether there were any overruns involved with the other subcontracts which either caused or contributed to the $98,000 overrun in the contract price experienced by the general contractor. From the evidence presented we are unable to determine if the loss allegedly suffered by the general contractor was due in part or entirely to the defaulting subcontractor or if it represents an underbid on the part of River Crest. Therefore, lacking this information we will amend the judgment of the trial court to delete the $32,000 loss of profit award. River Crest is entitled to 10% (customary overhead) of the difference between the amount Smith accepted to perform the roofing and the plumbing contracts and the amount the general contractor actually expended to have this work done. The difference between the actual cost of $114,284.30 and Smith’s contract price of $75,257 resulted in the overrun on these two subcontracts of $39,027.30. River Crest then is entitled to be compensated $3,902.73 for its 10% indirect costs on the overruns attributable to Smith’s breach. The balance of the overhead costs demanded and the demurrage cannot be awarded because River Crest has not proved by sufficient evidence these are attributable to Smith’s breach. Fidelity’s liability on this item is limited to 10% of the overrun on the plumbing contract only.

Appellants next contend the evidence is insufficient to support the wage violation assessment of $1,175. We disagree. By way of explanation, HANO by the contract may assess against the general contractor the difference between what the government sets as minimum for the work of any laborer and the lesser amount actually paid by the employer. In short, HANO billed River Crest a total of $1,175, representing total wage underpayments by Smith to its employees for work on this project. The amount of the bill was established by the testimony of River Crest’s president, and the tally sheets used to tabulate the shortage were identified by a federal official. The wage aspect of damages is affirmed.

The award of $2,500 attorney fees to River Crest is next put at issue by appellants. Attorney fees may be awarded only if authorized by statute or stipulated by contract. Pelican Printing Co. v. Pecot, supra. In this case appellee presumably rests its claim on the following contract provision — the only one dealing with attorney fees:

“11.20 The Subcontractor shall indemnify and hold harmless the Contractor and all of his agents and employees from and against all claims, damages, losses and expenses including attorney’s fees arising out of or resulting from the performance of the Subcontractor’s Work under this Subcontract, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder.”

We do not interpret this to include fees for a claim by the general contractor against the subcontractor for breach of contract and hold Smith is not liable for fees under the quoted section. If River Crest cannot recover based on contract, the surety likewise has no liability under the agreement because suretyship is an accessory promise to satisfy the debt if the party already bound defaults. (C.C. art. 3035.) The obligations in the agreement of suretyship cannot exceed those owed by the debtor. (C.C. art. 3037.) River Crest’s demand for attorney fees under either R.S. 9:3902 or R.S. 38:2246 against Smith and/or Fidelity must fail because both require the creditor to recover the full amount of its demand and the judgment as amended will not satisfy this requirement.

Finally we note appellant Fidelity argues this court should award attorney fees against Smith under an indemnification agreement in the bond. Clearly fees should be awarded. While the surety and the plumber had different representation in the trial court, both counsel joined in the same brief submitted on behalf of both appellants in this court. On the surface there appears to be a conflict of interest because the bonding company attorney, while ostensibly representing Smith, is claiming against Smith urging us to impose attorney fees and to affirm a third party judgment of indemnification Fidelity obtained against Smith. Because Smith’s attorney has joined in this brief we must assume the plumber tacitly concedes the attorney fees may be imposed. When questioned on this point in oral argument, Fidelity’s attorney did not abandon the demand for fees, so we must assume her co-counsel, Smith’s attorney, acquiesced.

In this connection counsel filed an affidavit reflecting a billing of $5,378.25 and costs of $710.33. We will award as fees and reimbursement for costs the amount submitted. No estimate of the value of services on appeal will be made because the attorney is not required to limit the billing for services to the figure fixed by the court. Indemnification requires the indemnitor to repay the expenditures of the indemnitee. It would be incumbent on Fidelity to establish a fee it was billed for services post trial if it expects the court to award the amount under an indemnification agreement.

In summary we hold:
1. Smith and Fidelity liable solidarily to River Crest for completion cost on plumbing contract $36,003.30, joist repair $1,418, and wage violations by Smith $1,175, totaling $38,596.30;
2. Smith liable to River Crest for roofing contract completion in the amount of $3,024;
3. Smith and Fidelity liable to River Crest for 10% overhead on the overrun of the plumbing contract, or $3,600.33;
4. Smith liable to River Crest for 10% overhead on the overrun on the roofing contract, or $302.40; and
5. Smith liable to Fidelity for attorney fees and expenses of $6,088.58.

For the reasons assigned the judgment is amended and affirmed and for the sake of clarity recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of River Crest, Inc., and against A1 Smith Plumbing & Heating Service, Inc., and Fidelity and Deposit Company of Maryland in solido condemning defendants to pay $42,-196.63 with legal interest from judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED there be judgment in favor of River Crest, Inc., and against defendant, A1 Smith Plumbing & Heating Service, Inc., for $3,326.40, with legal interest from judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED there be judgment in favor of Fidelity and Deposit Company of Maryland and against A1 Smith Plumbing & Heating Service, Inc., for $6,088.58 in attorney fees and legal expenses.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all other claims among the parties be dismissed. All costs of this appeal are to be borne equally by A1 Smith Plumbing & Heating Service, Inc., and River Crest, Inc.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

The opinion rendered in this matter on December 7, 1978, inadvertently omitted judgment in favor of Fidelity and Deposit Company of Maryland, third party plaintiff, and against A1 Smith’s Plumbing & Heating Service, Inc., and Alvin J. Smith, individually, third party defendants, under the indemnity agreement executed in connection with the Sub-Contractor’s Bond of Indemnity guaranteeing the performance of the plumbing subcontractor.

Accordingly, our judgment of December 7, 1978, is amended to add the following:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Fidelity and Deposit Company of Maryland, third party plaintiff, and against A1 Smith’s Plumbing & Heating Service, Inc., and Alvin J. Smith, individually, third party defendants, for such amounts as third party plaintiff is required to pay under the judgment rendered against it, as surety, in favor of River Crest, Inc.

In all other respects the judgment of December 7, 1978 is affirmed.

      . Mr. Gerald Karcher, president of River Crest, Inc., testified Smith’s default added 120 days to the completion time of the project.


author: LEMMON, Judge.

text:
    Nancy N. STERN v. Frank B. WILLIAMS.
    No. 9562.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 17, 1979.
    Writ Refused March 5, 1979.

      Monroe & Lemann, Thomas B. Lemann and Michael R. O’Keefe, III, New Orleans, for plaintiff-appellee. Stone, Pigman, Walther, Wittmann & Hutchinson, Clinton W. Shinn, Stephen G. Bullock and Walter B. Stuart, IV, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

This suit against Frank Williams by his former wife seeks to enforce the provisions of a separation and settlement agreement or to recover damages for its breach. At issue on appeal is the interpretation of certain contractual provisions regarding the divorced wife’s temporary use of the former matrimonial domicile on Iona Street and the purchase by Williams of another residence for her.

At the time of the divorce in June, 1972 Mrs. Williams (now Mrs. Stern) and her minor children were living in the Iona residence. Furthermore, certain monetary obligations were due her by Williams, arising from separate funds she had advanced for the benefit of the community. Against this factual background the parties entered into the separation agreement shortly after the divorce, which contained the following provisions pertinent to this litigation:

“3. Husband agrees to the continued occupancy by Wife and children of the present residence at 519 Iona-Street in Metairie through June 30,1979, subject to the conditions described in subsequent paragraphs. Husband will maintain all principal and interest payments, real estate taxes, and insurance coverage of house and contents on the present basis during the period of occupancy. The contents coverage and additional living expense coverage will be assigned in favor of Wife.
“4. Husband would undertake to provide an alternate residence at Wife’s request on the following basis:
“A. Husband would purchase a residence for Wife for a price (including the purchase price and improvements) up to $100,000;
“B. Title and ownership to be vested immediately in Wife’s name, since Husband would intend that the residence be owned by Wife.
“C. The amount of the purchase price shall be adjusted from June 30, 1972 to June 30,1978 (or June 30 of any intervening year preceding the time at which Wife proposes to acquire a residence) directly proportionate to changes in the May, 1972 Consumer Price Index of the Bureau of Labor Statistics of the U. S. Department of Commerce based on 1967 equals 100.00, the parties intending that Wife shall receive a residence valued at $100,000 in terms of May, 1972 dollar purchasing power.
“D. The foregoing obligation shall survive Husband’s death and constitute an obligation of his estate.
“14. Husband recognizes the following claims of Wife for separate funds of Wife:
“A. Separate funds expended for maintenance of household required to be reimbursed to Wife under Louisiana law .$40,565.21
“Value of separate funds donated by Mrs. Delphine C. Williams to Husband and Wife for payment of life insurance premiums (less value of insurance coverage) on policies owned by Husband.$55,593.52
“Husband’s agreement in Paragraph 4 shall satisfy these obligations. Wife relinquishes all other claims of any nature or kind against Husband, except claims arising under this Separation and Property Agreement. * * * ”

In March, 1976 Mrs. Stern remarried and moved into a residence owned by her present husband. She thereafter made demand upon Williams to purchase a house for her in accordance with Paragraph 4 of the separation agreement. When he declined, she filed this suit. The trial court rendered judgment requiring Williams to purchase a residence of the value stipulated in the agreement or, in default thereof, to pay her the sum of $96,158.73, the amount she had advanced for the benefit of the community.

Arguing on appeal that the contract must be viewed in its entirety, Williams contends Paragraph 3’s provision for Mrs. Stem’s use of the Iona residence “subject to the conditions described in subsequent paragraphs” must be read with Paragraph 4’s obligation for him “to provide an alternate residence at wife’s request”. He reasons that the paragraphs, taken together, constitute a conditional obligation to purchase an alternate residence and that no obligation arises until his former wife has need for a place in which to live or intends to actually live in the alternate residence she is demanding.

Courts are required to give effect to contracts according to the true intent of the parties, which intent is determined by the words of the contract, when the words are clear and lead to no absurd consequences. C.C. art. 1954. Under the clear wording of this contract, considered in its entirety, Williams has undertaken an unconditional obligation in Paragraph 4 to satisfy his former wife’s claims for separate funds by purchasing a residence for her upon her request. The conditional obligation is contained in Paragraph 3, which obliges him to allow her continued occupancy of the Iona residence until she requests the purchase of an alternate residence (or until the expiration of the specified term). The phrase “alternate residence” in Paragraph 4 can only be construed reasonably in connection with the condition in Paragraph 3, so that Williams’ conditional obligation to allow continued occupancy of the Iona residence ceases upon fulfillment of his unconditional obligation to purchase another residence to be owned by his former wife.

Furthermore, it would lead to an absurd consequence if the agreement were interpreted so as to mean Mrs. Stern intended to forfeit her claim in excess of $96,000.00 if she subsequently decided to live in a home other than the Iona residence or the one her husband was obliged to provide under Paragraph 4.

Williams further argues that in Paragraph 14 he merely recognized the wife’s claims and did not recognize the validity of the claims. He then reasons that since the agreement, if breached, was merely a compromise of those claims, the “(b)reach of a compromise does not make the original claim of the other party exigible”, but only returns the obligation to the status of a claim.

Compromise is a contract. C.C. art. 3071. One does not evade the obligations of a contract of compromise by breaching it. The contract of compromise in this case gave rise to an obligation to do, and breach of an obligation to do entitles the obligee to damages or to specific performance, if the case permits this option. C.C. art. 1926.

The trial court properly ordered Williams to perform his unconditional obligation or to pay damages if he failed to do so by the date specified in the judgment. The court also properly measured the damages according to C.C. art. 1934 as the loss the creditor has sustained, being the amount of her separate funds, with interest from the date the funds were advanced.

The judgment is affirmed, except that the deadline for specific performance is extended to the date which is six months from the day this judgment becomes final and definitive.

AFFIRMED.

ON APPLICATION FOR REHEARING

On application for rehearing Williams argues that he obliged himself only to “provide her with a comfortable home in which to live for the rest of her life”.

A reading of the entire contract belies this argument. Williams’ obligation in paragraph 4 “to provide an alternate residence” is explained by subparagraph B’s requirement that ownership must be vested immediately in the former wife, indicating the intent of the parties that Williams’ obligation was to purchase a residential building for Mrs. Stern for any purpose she chose to use it as owner, and was not simply to provide her with a place in which to live. The application is denied.

APPLICATION DENIED.


author: SAMUEL, Judge.

text:
    ECKERD DRUGS OF LOUISIANA, INC. v. GREENLAND VISTAS, INC.
    No. 9619.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Sanders, Downing, Kean & Cazesessus, Ben R. Miller, Jr., and Michael H. Rubin, Baton Rouge, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Charles Rosen, II, and Ewell E. Eagan, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, Eckerd Drugs of Louisiana, Inc., filed suit against defendant, Greenland Vistas, Inc., to cancel a lease held by it on certain premises located in Southgate Mall Shopping Center, in Alexandria, Louisiana on the ground that defendant had breached the lease contract.

The defendant answered denying breach of the lease contract. A short time before trial, plaintiff vacated the leased premises and defendant filed a reconventional demand seeking to compel plaintiff to resume its operations or to pay an amount equal to all rents under the lease.

After a trial on the merits, judgment was rendered in favor of plaintiff decreeing the lease dissolved. Defendant has appealed from that judgment.

The basis for plaintiff’s suit is threefold. It complains a large pylon constructed by defendant obscured the public’s view of its sign, thereby rendering the sign of no practical value; the construction of the pylon resulted in water backing into its store from a moderate rain and standing in front of the store so that people could not enter without getting their feet wet; and it also complains of removal of a canopy over a pedestrian walkway between its store and another store in the shopping center.

The pylon was constructed by defendant in an effort to improve the shopping center premises and attract more people to it. No notice was given plaintiff prior to construction of the pylon.

On March 26,1976, shortly after construction of the pylon began, plaintiff’s representatives sent a letter to defendant requesting it cease that construction and submit drawings for plaintiff’s review. On March 29,1976 plaintiff sent a mailgram to defendant informing it the “mall sign structure will totally block our store facade sign and further hide our store.” After receiving more detailed plans, it was obvious defendant did not intend to replace the canopy previously removed and plaintiff again requested the work to cease by letter of April 1, 1976 which protested the proposed pylon because it would block approximately two-thirds of plaintiff’s facade sign and protested the removal of a three foot metal canopy which provided weather protection for its exterior entrance.

The evidence adduced establishes that the pylon constructed by defendant substantially blocked the view of plaintiff’s sign, which was located in front of its door. The evidence also establishes that moderate rains caused water to go into plaintiff’s store, and after the rain subsided water remained standing for a substantial period of time. This caused plaintiff’s customers to have wet feet when entering the store.

Plaintiff relies on various provisions of the lease to support its argument that the actions of defendant breached the lease and authorized rescission thereof.

For example, the landlord agreed it would “not permit the disturbance of, nor interference with, the tenant’s quiet enjoyment of the leased premises.” In another section the lease provided “landlord agrees there shall be unobstructed use of sidewalks, driveways and roadways for automotive and pedestrian traffic to and from tenant’s buildings and adjacent public streets and highways.” In addition, defendant agreed to perform certain maintenance, including removal of standing water. Finally, the landlord clearly agreed that plaintiff “shall have the right at its own cost and expense to erect and maintain signs advertising its business on the exterior of the leased premises in compliance with controlling governmental requirements.”

Civil Code Article 2692 provides:
“The lessor is bound from the very nature of the contract, and without any clause to that effect:
1. To deliver the thing leased to the lessee.
2. To maintain the thing in a condition such as to serve for the use for which it is hired.
3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the . lease.” LSA-C.C. Art. 2692.

Plaintiff concedes not every breach of a lease will entitle a tenant to dissolve it under this article. However, it cites numerous cases which dissolve a lease when a landlord’s breach is “substantial” or “material”.

The trial judge did not pass upon the removal of the canopy over the sidewalk, but instead based his decision upon the location of the pylon and the water caused to stand in front of plaintiff’s door after the pylon was constructed. He obviously concluded these were substantial and material breaches of defendant’s lease and granted dissolution thereof. What is a substantial or material breach of a lease, particularly in this case, is a question of fact which will not be disturbed on appeal in the absence of a showing of manifest error on the part of the trial court. Here, we agree with the trial court.

Defendant attempts to establish plaintiff’s real motive to dissolve the lease was failure of the store to meet its economic projections and expectations. This argument is encompassed in the trial judge’s finding of fact. Moreover, the Supreme Court has allowed dissolution of a lease even where the inconvenience resulting from the alleged disturbance would be too small to authorize a claim for damages.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Plaintiff is the assignee of the lease, Eckerd’s Alexandria, Inc., and defendant is the assignee of the original lessor. A substitution agreement was executed between the parties, and we will discuss subsequent parties to the lease unless otherwise stated.

      .See, for example, Friendly Finance v. CefaLu Realty Investment, Inc., La.App., 278 So.2d 584; Reed v. Classified Parking System, La. App., 232 So.2d 103.

      . Canter v. Koehring Company, La., 283 So.2d 716.

      . See Dehan v. Youree, 161 La. 806, 109 So.2d 198.


author: WATSON, Judge.

text:
    George A. GWATNEY et al., Plaintiffs-Appellees, v. Joseph Edward MILLER, Defendant-Appellant.
    No. 6959.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Seidel & Bailey, Fred K. Bailey, Lafayette, for defendant-appellant.
    DeBaillon & Miller, Roderick L. Miller, Lafayette, for plaintiffs-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

MOTION TO DISMISS

The plaintiffs-appellees, George A. Gwat-ney, et al., move to dismiss the appeal of the defendant-appellant, Joseph Edward Miller, for the reason that defendant’s sus-pensive appeal bond was not timely filed. The motion is opposed.

Plaintiffs initiated this suit to enjoin the defendant from utilizing his property in violation of certain restrictive covenants applicable to the subdivision in which defendant’s tract was located and in which plaintiffs resided. The trial court granted plaintiffs’ request for a preliminary injunction and a hearing on the merits for a permanent injunction was held on May 24, 1978. Judgment was signed granting a permanent injunction on September 1, 1978. Defendant then moved for and obtained a suspensive appeal on September 29, 1978; however, the suspensive appeal bond was not filed until November 16, 1978.

Plaintiffs now assert that defendant’s appeal must be dismissed since the suspensive appeal bond was not timely filed as provided under LSA-C.C.P. Article 2123. Defendant opposes the motion and states that the bond was timely filed since he had not received notice of the signing of the final judgment and therefore, the delays for the filing of the appeal had not begun to run. In the alternative, defendant requests that his suspensive appeal be converted into a devolutive appeal since all costs have been timely paid.

When a case is taken under advisement, the delay for perfecting a suspen-sive appeal normally commences on the day after the clerk has mailed notice of the judgment. LSA-C.C.P. Articles 2123, 1974. A party then has thirty days from the expiration of the time afforded to request a new trial or to file for a suspensive appeal. LSA-C.C.P. Articles 2123, 1974.

In the instant case, the clerk’s certificate imprinted on the final judgment indicates that notice of this judgment was mailed to all parties on September 1, 1978. Although it has been held that a clerk’s certificate is not conclusively presumed to be correct in the face of conflicting evidence, Soileau v. Tri-State Mutual Insurance Co., 206 So.2d 716 (La.App.3rd Cir.1967), no such request has been filed in this case to correct the appellate record. Consequently, as the record now stands, the clerk’s certificate must be accepted as true.

Since the appellant herein is presumed to have received notice of the final judgment, the delays for filing suspensive and devolutive appeals had begun to run. Appellant had 30 days in which to perfect his suspensive appeal. Although he was granted such an appeal on September 29, 1978, the suspensive appeal bond was not filed until November 16,1978 (48 days after the appeal was granted). Therefore, this court is without jurisdiction to entertain the suspensive appeal.

However, since all costs in the court below have been paid, and since LSA-C. C.P. Article 2124 no longer requires that security be furnished in a devolutive appeal, plaintiff’s suspensive appeal is considered by this court as devolutive in nature. Where a suspensive appeal is sought but the appeal bond is not filed within the delay prescribed for the perfection of the suspen-sive appeal, that appeal will be sustained as a devolutive appeal, notwithstanding the fact that the motion and order of appeal failed to include any mention of a devolu-tive appeal. Aucoin v. Williams, 291 So.2d 504 (La.App.3rd Cir. 1974); Swan v. Clover Farm Creamery, Inc., 311 So.2d 285 (La. App.1st Cir. 1974).

For the reasons assigned, appellant’s sus-pensive appeal is dismissed at appellant’s cost; the devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED; DEVOLUTIVE APPEAL MAINTAINED.

      . Plaintiffs are: George A. Gwatney, Raywood Baudoin, Walter Broussard, Cecil Chatman, Jr., Emile Choplin, Jr., Archie Cobb, III, Jeanette Francez, Karl Girouard, Lawrence Harry, Terry Hayes, Charles E. Humbird, James M. Jacques, Raymond Jeoffroy, William S. Menard, Steve Pearson, Alton Pitre, Charles Robinson, Kenneth Short and John Tufts, Jr.

      . LSA-C.C.P. Art. 2123 provides that a suspen-sive appeal and the security furnished for such an appeal must be filed within 30 days from the time at which delays for filing such an appeal begin to run.


text:
    John H. WHITE, d/b/a White Construction and Equipment Rental Company, Plaintiff-Appellee, v. MARTIN GMC TRUCKS, INC., et al., Defendants-Appellants.
    No. 6504.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio, Lake Charles, and Levingston, Tynes, Liles & Ezell, Maurice L. Tynes, Lake Charles, for defendants-appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

This appeal was decided originally by this court in an opinion which affirmed, with the exception of a minor point, the judgment of the trial court. See 359 So.2d 1094 (La.App.1978). The case has been remanded to us by the Louisiana Supreme Court, 362 So.2d 1117, for reconsideration in light of Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978).

At the time of considering the applications of General Motors Corporation and Martin GMC Trucks, Inc. for rehearing [denied July 5,1978], we studied the decision in Alexander v. Burroughs Corp. [handed down May 22, 1978], and following the remand by the Louisiana Supreme Court, we have again considered Alexander v. Burroughs Corp., as well as the various arguments presented by the parties.

We find no reason to modify our original opinion.

The application for additional attorney’s fees for John H. White’s counsel is denied.

Costs on remand are taxed against General Motors Corporation and Martin GMC Trucks, Inc.

ORIGINAL OPINION REINSTATED.


text:
    MARTIN GMC TRUCKS, INC., Plaintiff-Appellant, v. Homer WHITE, d/b/a White Construction and Equipment Company, Defendant-Appellee.
    No. 6503.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio, and Levingston, Tynes, Liles & Ezell, Maurice L. Tynes, Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

See opinion in docket No. 6504, John H. White, d/b/a White Construction and Equipment Rental Company v. Martin GMC Trucks, Inc., et al., 365 So.2d 1135, handed down this date.

ORIGINAL OPINION 359 So.2d 1094 REINSTATED.


author: DOMENGEAUX, Judge.

text:
    James (Circkett) COLLIER, Plaintiff-Appellee, v. D. F. FOSTER et al., Defendants-Appellants.
    No. 6630.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Burnett & Rice, Gerald L. Burnett, Jr., Shreveport, for defendants-appellants.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

The only question presented on appeal in this case is whether plaintiff, James Collier, is entitled to lease property in Natchitoches Parish for the crop years 1978 and 1979.

D. F. Foster and Jim L. Knotts, two of four named defendants in the present suit, own approximately 800 acres in Natchitoch-es Parish, known as the “Walker Place” or “Island Plantation.” In April of 1977, they contacted plaintiff, James Collier, in order to enter into a predial lease arrangement for their property. An oral lease was entered into at this time, and plaintiff commenced soybean farming operations.

Subsequently, Knotts and Foster took actions to sell the land. Pursuant to this goal, they signed a buy and sell agreement for the land with Mr. Richard W. Phillips, Sr., on September 1, 1977.

Around this time, Collier became apprehensive with regard to whether he would be able to farm the property for the years 1978 and 1979. He approached Mr. Foster with a written lease which provided for a term of three calendar years, beginning April 12, 1977, and ending on April 11, 1980. This lease also attempted to confirm the oral lease arrangement entered into between Collier and the owners, Foster and Knotts, on April 12, 1977.

Shortly thereafter, in October of 1977, Mr. Phillips’ son, Richard W. Phillips, II, sent a letter to Collier wherein he represented himself as owner of the land. The letters stated that he had bought out his father’s interest in the property, and informed plaintiff that he would be farming the land himself for the crop year 1978. The letter also said that some equipment was going to be moved onto the property immediately.

On November 2, 1977, plaintiff filed suit against the owners, Foster and Knotts, and Richard Phillips, Sr., and his son, Richard Phillips, II, for injunctive relief and damages. Answers and reconventional demands were filed by both sets of defendants, Foster and Knotts, and Phillips and Phillips, II.

The trial judge granted a preliminary injunction against Phillips, II, restraining him from disturbing plaintiff in his possession of the leased land. After a full hearing, the trial judge made the injunction against the younger Phillips permanent; declared that there existed a three-year agricultural crop lease for the calendar years 1977,1978 and 1979 on the property in favor of plaintiff; ordered plaintiff to deliver one-fourth of the crop production to Foster and Knotts, pay the sum of $9,500.00 to Foster and Knotts for the equity and rental value of farm equipment, and complete the assumption of notes for an International Harvester tractor and disc, all pursuant to the lease arrangement; rejected the claim for damages against Foster and Knotts made by Phillips; and rejected all of the claims for damages and attorney’s fees.

From this judgment, the owner-defendants, Foster and Knotts, appealed devolu-tively, contending that the trial judge was in error by finding that Collier had the right to lease the property for 1978 and 1979.

The trial judge rendered oral reasons in support of his judgment, which were transcribed into the record. An analysis of his reasons reveals that under his construction of the evidence, he found plaintiff entitled to lease the property through 1979 on an estoppel theory.

There are several cases in Louisiana discussing estoppel in the context of lease arrangements. Thomas v. Stuart, 222 So.2d 615 (La.App. 2nd Cir. 1969); Cramer v. Habetz, 189 So.2d 278 (La.App. 3rd Cir. 1966); Federal Land Bank of New Orleans v. Sanders, 167 So. 140 (La.App. 1st Cir. 1936). We feel that the case of First National Bank of Crowley v. Andrus, 195 So. 854 (La.App. 1st Cir. 1940) is most instructive in the present situation.

That case involved an eviction proceeding brought by a landlord against a tenant in the context of an agricultural lease arrangement. The tenant had planted a rice crop pursuant to an oral lease for the crop year 1939, which was scheduled to terminate December 1, 1939, or when the crops were harvested, whichever was later. The crops were harvested by November 3, 1939, and the landlord had knowledge that the harvesting was completed. However, the landlord did not advise the tenant that he would not be able to farm the land for 1940 until December 8, 1939. Additionally, the evidence indicated that the tenant had begun making preparations on the land for the 1940 crop both before and after November 3, 1939.

The Court found that the tenant was entitled to farm the land for the 1940 crop year, despite the notice to vacate given by the landlord stating:

“We are of the opinion that there existed a tacit or implied contract of lease between the parties for the 1940 crop year. Even if such were not the case, since it is clear from the evidence that the defendant was led to believe, in good faith, that such a tacit or implied contract of lease existed as in former years, it is our opinion that the plaintiff is now es-topped from ejecting him, particularly in view of the fact that plaintiff has neither paid defendant nor tendered payment to him for his services in preparing the land for the 1940 rice crop. ‘Where one person, by his words or conduct, has intentionally caused another to act in such a way as to cause him expense or detriment, the former is concluded from averring against the latter and to his prejudice, a different state of facts.’ Federal Land Bank of New Orleans v. Sanders, [supra ].”

195 So. 854, 856.

Turning to the instant case, we feel that there was sufficient evidence in the record to support the trial court’s judgment.

Collier testified that in every conversation he had with Foster or Knotts he was told not to concern himself with whether he would be able to farm the land for 1978 and 1979, because, regardless of what happened, he would be permitted to do so.

Plaintiff stated specifically that when the original discussion took place in April of 1977 between himself and Messrs. Foster and Knotts, he was asked by Knotts if he would be interested in assuming the notes on an International Harvester tractor. Plaintiff said that he had informed Knotts that he could not assume the note with merely a one-year crop lease, whereupon Knotts, according to plaintiff, said that further arrangements could be made.

Plaintiff also testified that in August of 1977, Foster came to his home and discussed the provisions for payment of the tractor. Plaintiff stated that he agreed to pay the $5,000.00 equity in the tractor and to assume the balance of the note, as long as he would be able to farm the land for more than one year. Plaintiff said that Foster told him at that time that he would be permitted to farm the land until the tractor was paid in full. This was substantiated by the testimony of Shirley Collier, plaintiff’s wife, who heard the conversation.

Plaintiff further testified that he attempted to get a written lease signed in September and October of 1977, in order to confirm the three-year oral lease. Plaintiff said that when the written lease was delivered to Foster, Foster said he would probably sign the lease after his attorney reviewed it. Plaintiff stated that he spoke with Foster a few days later and that Foster told him not to worry because the lease would be signed.

Finally, plaintiff testified that at the time the crop was being harvested in the fall of 1977, he was preparing the land for the crop year 1978. Plaintiff explained that these preparations consisted of discing the stubbles left after harvesting. He also stated that both Foster and Knotts were aware of his preparations for next year’s crop and that neither expressed any objections to this preparation.

We feel that the above evidence is sufficient to sustain the trial court’s finding. Even though the testimony of Foster and Knotts and their witnesses contradict some of plaintiff’s testimony, we can find no manifest error in the trial court’s evaluation. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

If, then, plaintiff’s testimony is accepted on its face, it is clear that he was led into believing that he would be able to farm the land for 1978 and 1979. It is also clear that plaintiff acted to his detriment insofar as the land was being prepared for the following crop year at the time of harvest. Considered in this light, the instant case bears striking similarity to First National Bank of Crowley v. Andrus, supra, and, accordingly, we affirm.

For the above reasons, the judgment of the District Court is affirmed at the cost of defendants-appellants, D. F. Foster and Jim L. Knotts.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Phillips, Sr. and Phillips, II are not involved in this appeal.


text:
    Sharon FOUNTAIN, Plaintiff-Appellant, v. Buford FOUNTAIN, Defendant-Appellee.
    No. 6661.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Lyman S. Gore, Yidalia, for plaintiff-appellant.
    Jerry Daye, Ferriday, for defendant-ap-pellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case involves the effect of a Texas decree of child custody and the efforts of plaintiff, Sharon Fountain, to obtain the custody of her children.

The facts are not in dispute. Plaintiff and her husband, Mr. Buford Fountain, were domiciled in Texas with their three minor children: two sons, Timothy and John, and one daughter, Wendy. At some time prior to September 20,1976, the couple became estranged. Mrs. Fountain left Texas and moved to Vidalia, Louisiana, in order to live with her mother. On September 20, 1976, Mr. Fountain filed for a divorce in Texas. The children resided with him at that time.

On June 1, 1977, the children left Texas and went to Louisiana in order to spend the summer months with their mother. On July 29, 1977, Mrs. Fountain filed suit in Concordia Parish for a separation from bed and board, dissolution of the community of acquets or gains, temporary and permanent custody of the children, and alimony for herself and the children. An attorney was appointed by the Court to represent the husband in these proceedings.

A rule to show cause for alimony and temporary custody was heard on August 10, 1977, and the Louisiana judge awarded Mrs. Fountain the temporary custody of the children during the pendency of the separation proceedings. No award for alimony was made.

On August 26,1977, Mr. Fountain obtained a divorce from the Texas Court in the suit which he had filed on September 20, 1976. Mrs. Fountain had retained counsel to represent her in the Texas proceedings. The Texas divorce decree awarded Mr. Fountain custody of the children, giving Mrs. Fountain reasonable visitation rights. Mr. Fountain was unable to get his divorced wife to return the children to him. After consulting with an attorney in Louisiana, he filed an Answer and Reconventional Demand in the Louisiana separation suit, asking that the Court dismiss the wife’s petition and give full faith and credit to the Texas judgment of divorce and award of custody.

On January 17, 1978, the matter came to trial in Louisiana and both Buford Fountain and Sharon Fountain testified. It is to be noted that at this time the children were still in Louisiana with their mother. The Louisiana judge rendered judgment in favor of Mr. Fountain, giving full faith and credit to the Texas decree of divorce and child custody. He suspended the enforcement of his judgment, insofar as the judgment of child custody was concerned, until June 1,1978, and gave Mr. Fountain visitation rights lasting until that time. Plaintiff, Mrs. Fountain, appeals.

There are two fundamental issues presented by plaintiff on appeal:

(1) Whether the Texas decree of custody should be entitled to full faith and credit; and
(2) Whether the Louisiana award of temporary custody was properly set aside.

I.

Under the Full Faith and Credit Clause of the United States Constitution, Louisiana Courts recognize the validity of awards of custody made by foreign Courts. E. g., Tennyson v. Tennyson, 263 So.2d 88 (La.App. 1st Cir. 1972); Legé v. Legé, 228 So.2d 202 (La.App. 3rd Cir. 1969); Brewer v. Macaluso, 221 So.2d 343 (La.App. 4th Cir. 1969). However, full faith and credit is not due when it is shown that the foreign court did not have jurisdiction to make such an award. Williams v. North Carolina, 325 U.S. 226 (1945); Whatley v. Whatley, 312 So.2d 149 (La.App. 1st Cir. 1975). The law used to determine whether the foreign court had jurisdiction is the law of the forum. State ex rel. Cahill v. James, 172 So.2d 299 (La.App. 1st Cir. 1965).

In the instant case, therefore, it is necessary to determine if the Texas Court had jurisdiction under its law to enter an award of custody. We find that it did.

Our independent research of Texas law has revealed the case of Davis v. Spraggins, 449 S.W.2d 80 (Tex.Civ.App. 1969), which we feel is factually on point with the present controversy with regard to jurisdiction.

Spraggins involved a Texas couple who were divorced in Texas in April of 1965. The father was awarded custody of the three minor children of the marriage. In January of 1967, the mother filed a petition in Texas to readjudicate the matter of custody. At this time, the mother, father, and children were all domiciled in Texas. The father filed a general denial into the proceedings. In May of 1967, subsequent to the filing of the general denial, the father moved from Texas to Hawaii, taking the three minor children with him. In October of 1968, the husband filed a plea to the jurisdiction of the Texas Court, which was overruled. In March of 1969, after trial, the Texas Court entered judgment changing the custody of the children to the mother. The father appealed.

With regard to the jurisdictional issue, the father argued that the Texas Court was without jurisdiction because the children were neither domiciled nor present in Texas at the time of the hearing. The Texas appellate court pointed out that, at the time the father was served with citation, both he and the children were residing in Texas. After finding that the father did not object to jurisdiction at the time he filed his answer, and hence may have waived an objection to jurisdiction, the Court stated:

“There exists two basic alternative prerequisites for jurisdiction in child custody cases: (1) domicile of the child in the state or (2) the child’s presence in the state. Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (Sup.Ct.1952). With either of these prerequisites present at the time the petition is filed and service had, the District Court has jurisdiction and that jurisdiction cannot be defeated by subsequent events. ‘ * * * (A)s between the parties litigant, once jurisdiction has attached in proceedings for the custody of a minor child the subsequent removal of the child from the territorial jurisdiction of the court does not defeat the court’s jurisdiction to award custody * * *.’ Annot., 171 A.L.R. 1405, 1406; Annot., 9 A.L.R.2d 434, 446; Little v. Little, 249 Ala. 144, 30 So.2d 386, 171 A.L.R. 1399, 1947.”

449 S.W.2d at page 82.

Turning to the instant case, we feel that the Texas Court had jurisdiction to make a determination of custody. It is undisputed that at the time the petition for divorce was filed in Texas, the children were present and were domiciled in Texas with their father. With regard to the location of the children when service was had, Mrs. Fountain testified that she was aware of the divorce proceedings and had retained counsel to represent her in Texas. We feel that we can assume she was given notice in the Texas proceedings while the children were in Texas with their father, because there is absolutely no indication in the record that the children were not in Texas at the time service was made. Additionally, the burden of proof in showing the lack of jurisdiction of the Court of another state is upon the party asserting it. State, ex rel. Cahill v. James, supra.

Having determined that the Texas Court had jurisdiction over the children sufficient to sustain a decree of custody, we conclude that the trial judge was correct insofar as he gave full faith and credit to the Texas decree of custody.

II.

With regard to the second issue, the mother contends that her award of temporary custody of the children pending the Louisiana separation proceedings should not have been abated by the subsequént Texas divorce. Although she admits that the Texas divorce terminated the. Louisiana separation action, she contends that her judgment of temporary custody resulted from a separate action to which the father was properly notified by curator and to which no objections were ever made.

We find no merit to this contention. To accept this argument is to overlook the underlying nature of an award of temporary custody. Temporary custody is merely an initial determination made to ascertain which of the parents will keep the children until such time as a full hearing on custody can be made. It is quite elementary that when the separation suit can be maintained no longer, the award of temporary custody pending that suit can no longer stand. Hickman v. Hickman, 227 So.2d 14 (La.App. 3rd Cir. 1969) (father’s award of temporary custody pending suit for separation-divorce fell when spouses reconciled during pendency of proceedings).

In the instant case, the separation suit could no longer be maintained because the parties were already divorced, and we conclude that this dissolved the award of temporary custody. In any event, the award of permanent custody made by the Texas Court was definitive and superceded any prior award of custody which a Louisiana Court may have made.

III.

We do not feel that our resolution of this case has been completed by disposing of the two issue raised by the mother on appeal. We perceive a third issue involved in these proceedings, viz. whether the Louisiana Court should have made a redetermination of the custody issue notwithstanding the Texas decree.

At the time that this case came up, Louisiana’s position was that a Court had jurisdiction to redetermine the custody of children already covered by a valid out of state custody divorce decree, if the children were domiciled or physically present in Louisiana. Louisiana Code of Civil Procedure Article 10(5); State, ex rel. Girtman v. Ricketson, supra; Emery v. Emery, 223 So.2d 680 (La.App. 4th Cir. 1969). Thus, in the instant case, the trial court had the power to award the decree of custody, since both parties admit that the children were physically present in Louisiana at the time the suit was filed and at the time the suit was heard, and it is apparent that the Louisiana Court could have made a redetermination of custody had the matter been properly before it.

We feel that the trial judge was correct in not reopening the custody issue because the matter was not properly before him under the procedural posture of the case. The valid Texas decree of divorce pre-empted the mother’s right to a legal separation in Louisiana, thus her separation suit had to be dismissed. Likewise, we are of the opinion that the demand for custody also had to be dismissed, because it was merely incidental to her separation suit.

At the time her separation suit was filed, the Texas judgment had not been rendered. The parties, therefore, were still married, and no custody decree for the children had been entered. By virtue of her demand for custody in the separation proceeding, the mother sought, in effect, primary custody of the children in anticipation of a legal separation. When the Texas decree of divorce was rendered, it definitively disposed of the issue of separation and of primary custody; thus, when full faith and credit was given to the Texas decree in Louisiana, the issues of legal separation and primary custody were already resolved. With regard to child custody, the only recourse the mother had in this situation, was to seek a change of custody by her pleadings. This she did not do.

In summary, therefore, we hold in the context of this case, that (1) the Texas decree of custody was entitled to full faith and credit in Louisiana because it was rendered by a Texas Court with jurisdiction over the children; (2) the award of temporary custody pursuant to the suit for separation in Louisiana expired when the right to a legal separation no longer existed; and 3) in order to obtain custody it was necessary for the mother to seek a change of custody by her pleadings.

For the above reasons, the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

      . Plaintiff does not dispute the validity of the Texas decree insofar as the granting of the divorce is concerned nor the entitlement of the divorce decree to full faith and credit in Louisiana.

      . We note that Act 513 of the 1978 Regular Legislative Session enacted the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1700 et seq. This Act became effective on October 1, 1978.


author: GUIDRY, Judge.

text:
    FORD, BACON & DAVIS CONSTRUCTION CO., Plaintiff-Appellee, v. Donald DOGA, Clerk of Court for St. Landry Parish, et al., Defendants-Appellants.
    No. 6696.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Hudson, Potts & Bernstein, James A. Roundtree, Monroe, for defendants-appellants.
    Shotwell, Brown & Sperry, L. Michael Ashbrook, Monroe, Dubuisson, Brinkhaus & Dauzat by William A. Brinkhaus, Opelou-sas, for plaintiff-appellee.
    Sanders, Downing, Kean & Cazedessus by John V. Parker, Baton Rouge, Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, Lewis & Lewis by John M. Shaw, Opelou-sas, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This appeal arises from a judgment ordering a writ of mandamus to issue compelling the Clerk of Court of St. Landry Parish to cancel a bond furnished by Ford, Bacon and Davis Construction Corporation (Ford) pursuant to the provisions of LSA-R.S. 9:4841. The pertinent facts giving rise to this litigation are as follows: In 1976 Jerry Cloy, Inc. (Cloy) entered into a written subcontract with Ford pursuant to which Cloy would construct certain road, railroad and canal crossings and install pipeline casings for a pipeline construction project being done by Ford for Colonial Pipeline Company (Colonial). Colonial was the owner of pipeline rights of way on the properties where the pipeline was being constructed, through portions of Calcasieu, Jefferson Davis, Acadia, St. Landry, Pointe Coupee and West Feliciana Parishes. The construction contracts were not recorded. .

After a dispute arose between Cloy and Ford concerning the latter’s alleged failure to perform under the terms of the subcontract, Cloy filed a lien against Colonial pursuant to the Private Works Act, LSA-R.S. 9:4801 et seq., 9:4811 and 9:4812, asserting a privilege against Colonial’s pipe line in the several parishes above named. This lien was filed in St. Landry Parish on January 4,1977. Ford substituted a bond pursuant to LSA-R.S. 9:4841 for the release and cancellation of the St. Landry Parish lien on January 31, 1977, on which date the lien was cancelled from the public records of that parish. Suit was thereafter timely brought by Cloy in St. Landry Parish against Ford and Colonial for damages suffered by it as a consequence of the contractor’s alleged failure to perform under the subcontract agreement and for recognition and enforcement of its lien rights.

Declinatory exceptions to venue were filed by the defendants, which exceptions were sustained by the trial court on August 10, 1977. In its reasons for judgment, the trial court stated:

“The petition has been met by an Exception of Venue, and it is apparent that the only way plaintiff can sue in St. Landry Parish is if it has a valid lien under 9:4801 et seq., as the venue for both defendants is in Orleans Parish . . . ”

The trial court then reasoned that LSA-R.S. 9:4811 applied only to non-owner lessees and concluded that plaintiff’s lien against work constructed by a non-owner servitude owner was not within the intendment of the cited section of the Private Works Act and was thus invalid. In this regard the trial court stated:

“However, while personally feeling that what is considered a servitude might, in some instances be a lease, the Court applies the doctrine of strict construction with reference to the lease, restricts the lien to lessees; and, since the basic right exercised is declared by both counsel to be a servitude, the Court must find the lien is not permitted under 9:4801 et seq., and consequently, there is no venue in St. Landry Parish.”

The court, by judgment dated and signed August 10, 1977, dismissed the action against Colonial without prejudice, and transferred the action against Ford to Oua-chita Parish pursuant to LSA-C.C.P. Article 121, where such action is still pending.

When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.

Following rendition of this judgment Ford filed a motion seeking the issuance of a writ of mandamus to compel the Clerk of Court of St. Landry to cancel the bond which it had substituted for the lien from the public records of that parish. The trial court granted defendant’s motion, stating:

“The court has held the lien herein is invalid. Such being the case, there is no necessity for bonding the lien. This Court is therefore of the opinion that Mandamus to compel cancellation of the bond lies . .’’

The judgment making the alternative writ of mandamus peremptory was rendered and signed on March 15,1978. Cloy has appealed from this judgment, alleging that the earlier ruling which sustained defendant Ford’s exception to venue was only an interlocutory judgment from which no appeal lies and consequently the trial court erred in ordering the cancellation of the bond prior to a final adjudication on the validity of the lien. We agree, and reverse the judgment of the trial court.

Pursuant to the trial court’s judgment rendered on August 10, 1977, sustaining the exceptions to venue, Colonial was dismissed from the suit and the action against Ford was transferred to Ouachita Parish. The express terms of this judgment purport only to sustain the declinatory exception, and do not address the issue of the validity of the lien. The judgment referred to reads in part as follows:

“. . . after hearing the evidence and the law and the evidence being in favor thereof for written reasons assigned:
IT IS ORDERED, ADJUDGED AND DECREED that the declinatory exception to venue filed on behalf of defendant, Colonial Pipeline Company, is hereby sustained and plaintiff’s suit against Colonial Pipeline Company is dismissed, without prejudice, at the cost of plaintiff.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the dec-linatory exception to venue filed on behalf of defendant, Ford, Bacon and Davis Construction Corporation is hereby sustained and ... is hereby transferred to . . . the Parish of Ouachita."

In its Reasons for Judgment, the court stated that it was sustaining the exception because it found the lien to be invalid, but no mention was made of this in the judgment itself.

It is well settled that written reasons for judgment do not form a part of the judgment itself, and do not constitute a final judgment from which an appeal can be taken. Hinchman v. Brotherhood of Electrical Workers, 292 So.2d 717 (La.1974), on remand, 299 So.2d 818, writ den. 302 So.2d 618, cert. den., 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104; Pearce ex rel. Livestock Sanitary Board v. Johnson, 250 So.2d 567 (La.App. 3rd Cir. 1971); Deason v. State Farm Mutual Automobile Ins. Co., 204 So.2d 428 (La.App. 3rd Cir. 1967). A judgment which sustains an exception to venue is an interlocutory judgment which may not be appealed without a showing of irreparable injury. Hobbs v. Fireman’s Fund American Ins. Cos., 293 So.2d 608 (La.App. 3rd Cir. 1974), writ den. 296 So.2d 832; Broussard v. Liberty Mutual Ins. Co., 204 So.2d 714 (La.App. 3rd Cir. 1967); Thibaut v. Thibaut, 346 So.2d 809 (La.App. 1st Cir. 1977). LSA-C.C.P. Art. 2083. As such, this matter may be submitted to the appellate court for review following rendition of a final judgment on the merits. Rapides Cent. Ry. Co. v. Missouri Pac. Ry. Co., 22 So.2d 200 (La.1945); Tannehill v. Souther-land, 228 So.2d 485 (La.1969).

Without addressing the substantial issue of whether the validity of a lien under the Private Works Act can be adjudicated on an exception of venue we simply conclude that in the instant case there has been no final judgment decreeing Cloy’s lien to be invalid and therefore the trial court erred in ordering cancellation of the bond furnished by Ford.

For the above and foregoing reasons the judgment appealed from is reversed and set aside and it is ordered that Ford’s motion for a writ of mandamus be dismissed at appellee’s cost.

REVERSED AND RENDERED.

      , LSA-R.S. 9:4841 provides:
      “When any contractor shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereof, the contractor shall have the right to bond any claim or claims which may be filed or recorded against the said work by depositing with the clerk of court of the parish in which such claims are filed or recorded a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.”

      . LSA-R.S. 9:4811 provides:
      Where any work as hereinabove set forth is done or buildings or other improvements made, where the person for whom the work is done or with whom the contract is made, or by whom the work is done, is not the owner of the land upon which the work is located, then he shall be subject to all the obligations that are made incumbent on the owner, and the privileges shall operate upon whatever right the said person having the work done or doing the work may have to the use of the land as lessee. The privilege shall operate against the lease such person holds, if there is one, or if the said work is caused to be erected by a mineral lessee, then the privilege shall exist against the mineral lease and whatever rights the lessee may have therein, thereon or thereto. The privileges shall not interfere with the lessor’s privilege or his right to demand and recover occupancy of the leased premises in default of the payment of rent, or his right to sell the lease or right of occupancy under any judgment he may obtain against his lessee growing out of the lease. In the case of such sale, the privileges shall be restricted to the proceeds of sale, and shall not follow the property, the lease, or the right of occupancy. LSA-R.S. 9:4812 provides in part:
      when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation, and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. The effect of the recordation of the claim shall cease and the privilege preserved by the rec-ordation shall perempt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim. . . .

      . The trial court submitted additional reasons for judgment, in which it acknowledged that the parish of proper venue for Ford was not in Orleans, but rather in Ouachita Parish, its principal place of business.

      . LSA-C.C.P. Article 121 provides: