text:
    COLEMAN OLDSMOBILE, INC. v. Arthur COBB.
    No. 12375.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Robert L. Kleinpeter, Baton Rouge, of counsel for plaintiff-appellee Coleman Oldsmobile, Inc.
    William H. Cooper, Jr., Baton Rouge, of counsel for defendant-appellant Arthur Cobb.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This appeal arises out of an action to recover funds seized by defendant-appellant by writ of fifa and garnishment in another action pursuant to a default judgment which was subsequently reversed by this Court.

On June 22,1976, defendant’s wife, Paula Cobb, filed suit in redhibition to rescind the sale of a 1974 BMW Bavaria automobile which was purchased from plaintiff herein, Coleman Oldsmobile, Inc. (hereinafter referred to as “Coleman”). On July 20, 1976, plaintiff, Paula Cobb, entered a preliminary default in the action against Coleman. On July 22, 1976, Coleman filed a pleading styled “Motion for Summary Judgment” alleging that the claim had prescribed and that it was entitled to judgment as a matter of law. The preliminary default was confirmed on July 23, 1976, neither the judge nor counsel for plaintiff being aware of the July 22nd pleading. Judgment was signed on August 2, 1976, and plaintiff sought and obtained a writ of fifa and cited Louisiana National Bank as garnishee, causing to be delivered to the Sheriff the sum of $15,916.80 from funds in the account of Coleman at that bank. These funds are now in the possession of Paula Cobb.

Coleman appealed the default judgment to this Court. We found the pleading filed by Coleman on July 22nd, while styled as a motion for summary judgment, was in fact an exception of prescription which interrupted the delay for answering until the exception could be ruled upon. Since the exception was never ruled upon, the delay for answering had not yet expired on July 23rd, and the default judgment could not be legally confirmed. Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1st Cir. 1977), writ denied, 349 So.2d 1269 (1977).

Plaintiff subsequently filed this suit against defendant, Arthur Cobb, as head and master of the community, to recover the sum of $15,916.80 seized under the invalid default judgment. Defendant filed an exception of no cause of action which was overruled.

Coleman filed a motion for summary judgment setting out the above facts via affidavit, claiming there was no genuine issue as to material fact and that it was entitled to judgment as a matter of law. Defendant filed no affidavit which in any way controverted or amounted to an opposition of the motion for summary judgment, though filed in the record is an affidavit of defendant and a letter addressed to Robert L. Kleinpeter which explain his actions in confirming the default against Coleman.

The trial judge granted plaintiff’s motion for summary judgment ordering defendant to return the sun of $15,916.80 seized under the default judgment with interest thereon at the legal rate from October 4, 1976, the date of seizure, until paid. Defendant filed a motion for new trial which was subsequently denied by the trial court. From the above judgment, defendant has appealed. Plaintiff has answered the appeal seeking damages for frivolous appeal. We amend and as amended, affirm.

Defendant-appellant claims the trial judge erred in finding there was no genuine issue as to material fact. We disagree. At most the only opposition to the motion was counsel’s argument that the prior suit for redhibition was still pending and should he be successful in that suit then the present suit to recover the funds would be moot. Defendant is only in possession of these funds by virtue of a writ of fifa issued in connection with a judgment which we have declared invalid. Accordingly, defendant’s suit for redhibition has no bearing on whether the funds which he has seized in consequence of said invalid judgment should be returned. There being no dispute as to any material fact, the trial judge was correct in so holding.

Defendant has not cited as error the application of the law by the trial judge. We note, however, that a defendant who has suffered seizure under an invalid judgment has a right to recover that which was wrongfully seized. State, Department of Highways v. Busch, 254 La. 541, 225 So.2d 208, 210 (1969); Bomarito v. Max Barnett Furniture Company, 177 La. 1010, 150 So. 2 (1933); O’Brien v. O’Brien, 347 So.2d 1288 (La.App. 1st Cir. 1977). The proper procedure is to file a separate suit for its recovery. Henry Waters Truck & Tractor Company, Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973) (on rehearing), writ refused, 279 So.2d 206 (1973). We, therefore, affirm the trial court’s granting the motion for summary judgment.

Answering the appeal, plaintiff-ap-pellee seeks damages for frivolous appeal. This Court recently reiterated in Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977), the well-established principles in this area:

“ * * * Article 2164 of the Code of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973), Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), and Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976).” (348 So.2d at 741)

Counsel for plaintiff argues that defendant prosecuted this appeal solely for the purpose of delay. We agree. Appellant’s only defense asserted on appeal is that it was improper for the trial judge to grant a summary judgment in this case while the principal action, i. e., the suit in redhibition, was still pending. This claim is without merit. Plaintiff herein has a right to bring a separate action to recover money seized under an illegal judgment. Henry Waters Truck & Tractor Company, Inc. v. Relan, supra. Defendant’s assertion that he should be allowed to keep and have the use of money seized under an illegal judgment simply because there is a suit pending between the same parties for the same amount is untenable.

This alone is not dispositive that damages for frivolous appeal are proper. However, when viewed in the context of defendant’s actions throughout the entire record, we believe damages are due.

In answer to plaintiff’s petition in this case, defendant filed an exception of no cause of action. After the exception was overruled, plaintiff filed a motion for summary judgment. Defendant filed no memorandum in opposition thereto and could not have filed any affidavit which would have effectively opposed the motion. Defendant filed a motion for new trial after the summary judgment was granted, claiming the judgment to be contrary to the law and evidence but filed no memorandum in support thereof. Defendant conceded during oral arguments before this Court that he did not appear to argue either against the motion for summary judgment or in favor of the motion for new trial. Finally, defendant lodged a suspensive appeal and set forth in his brief in very short terms the above errors which we have reviewed and rejected.

Viewing the ease as a whole, considering that the defendant had no defense to plaintiff’s claim and that he nevertheless took positions through various pleadings which tended to delay the process of litigation, and also considering the lack of serious advocacy in these positions taken, including this appeal, we agree that this appeal was taken solely for the purposes of delay and damages for frivolous appeal are warranted.

We believe that $750.00 as attorney’s fees is adequate damages to be assessed against defendant-appellant as a result of this appeal. Samford v. Samford, 297 So.2d 465 (La.App. 2nd Cir. 1974).

Therefore, the judgment of the trial court is amended and the defendant-appellant, Arthur Cobb, is hereby condemned to pay plaintiff-appellee, Coleman Oldsmobile, Inc., the sum of $750.00 in damages for prosecuting this appeal. In all other respects the judgment is affirmed. All costs are to be borne by defendant-appellant.

AMENDED AND AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Dennis BRAUD et al. v. AETNA INSURANCE COMPANY et al.
    No. 12377.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Miriam T. Attaya, Lawrence W. Bell, Bell & Attaya, Gonzales, for plaintiffs and appellants.
    Aubrey L. Moore, Glusman, Moore & Lopez, Baton Rouge, for Town of Gonzales and Commercial Union Ins. Co. and appel-lees.

      John C. Miller, Kan trow, Spaht, Weaver & Walter, Baton Rouge, for Heritage Man- or of Gonzales and Hartford Ins. Co. and appellees.
    Glenn T. Cambre, Crawford, Lambert & Goldsmith, Gonzales, for Town of Gonzales and appellees.
    Arthur H. Andrews, Franklin, Moore & Walsh, Baton Rouge, for East-West Development Corp. and Aetna Ins. Co. and appel-lees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit for damages by Dennis Braud and Alice Marchand Braud for injuries suffered by Mrs. Braud when she fell in a parking lot owned by East-West Ascension Development Corporation. Defendants are East-West, Aetna Insurance Company, its insurer; the Town of Gonzales, Commercial Union Insurance Company, its insurer; Heritage Manor of Gonzales and Hartford Insurance Company, its insurer.

In their petition, plaintiffs allege that Mrs. Braud fell when her foot slipped into an open manhole. It is claimed that either East-West or the Town of Gonzales or both of them were responsible for keeping a cover on the hole, and had negligently failed to do so. The negligence of Heritage is said to be its failure to properly supervise and care for Mrs. Braud, who was a patient in the nursing home.

On May 25,1973, Mrs. Roberta Rushing, a registered nurse who was the Administrator of Heritage Manor, drove five of the elderly patients to the office of Dr. Gerald Gaudin for routine physical examinations. She parked her car near the door to Dr. Gau-din’s office. Close to the right front wheel of her car was a water shut off valve, which was located in a hole near the curb of the sidewalk in front of the office. The hole, which was about ten inches in diameter, was supposed to be fitted with a metal cover, but the cover was missing.

Mrs. Rushing testified that, after telling Mrs. Braud and the other patients to remain in the car until she returned for them, she assisted one of them into the doctor’s office. While she was seating this patient, she was told that Mrs. Braud had fallen. She returned to the parking lot and found Mrs. Braud in the parking lot “not exactly in a lying position and not exactly in a sitting position.” Mrs. Rushing did not testify where Mrs. Braud was lying relative to the hole or to the car. Mrs. Rushing then got a folding wheelchair from the trunk of her car, put Mrs. Braud in it, and took her in to Dr. Gaudin’s office.

Dr. Gaudin examined Mrs. Braud, and decided to send her to the hospital for an X-ray. Mrs. Rushing then called an employee at the nursing home, who was married to Mrs. Braud’s grandson. She, in turn, called her mother-in-law, Mrs. Braud’s daughter, La Verne Brown, who came to Dr. Gaudin’s office to get Mrs. Braud.

When Mrs. Brown arrived, she asked her mother what had happened, and was told that she had fallen in the hole outside by the doctor’s door. There is no other evidence in the record to indicate how the accident happened. Mrs. Braud died on January 19, 1975, and could not testify. Her deposition was never taken. None of the patients who were in the car were called to testify, and may have been deceased by the time of the trial. There were no other eye witnesses.

The testimony by Mrs. Brown was timely objected to by all defendants, as being hearsay. Plaintiffs contend that Mrs. Braud’s remark is admissible under the res gestae exception to the hearsay rule. It is not clear from the record how much time elapsed between the fall and Mrs. Brown’s arrival at the doctor’s office. During that time, Mrs. Rushing had to go outside, put Mrs. Braud in the wheelchair and bring her in to the doctor. Dr. Gaudin had to examine her, and decide to send her for an X-ray. Mrs. Rushing then had to call Heritage Manor, and the employee there had to call Mrs. Brown. Mrs. Brown estimated it took her from five to ten minutes to arrive at the nursing home. We conclude that the total elapsed time must have been in the neighborhood of 20 to 30 minutes.

In order to be part of the res gestae, statements must be made spontaneously and impulsively, and at approximately the same time as the accident. The statement in this case was made 20 to 30 minutes after the accident, and in response to a question put to Mrs. Braud by her daughter. Under those circumstances, we hold the statement not to be part of the res gestae, and inadmissible as evidence. See Tait v. Western World Insurance Company, 220 So.2d 226 (La.App. 3rd Cir. 1969).

There is no other evidence, circumstantial or otherwise, which indicates that the hole was in any way connected with Mrs. Braud’s fall. There is, therefore, no basis for liability on the parts of East-West, the Town of Gonzales, or their insurers.

With respect to the alleged negligence of Heritage Manor, the only evidence in the record is the testimony of Mrs. Rushing. She stated that she knew of no rules or standards governing the number of attendants who should accompany elderly patients when they are being taken to places away from the nursing home. She testified that she had no difficulty in handling five patients under the circumstances of this case, and that she had previously taken these same patients on a number of expeditions away from the home. There is no evidence of negligence on the part of Heritage Manor in its supervision of Mrs. Braud.

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.


text:
    INDUSTRIAL SAND & ABRASIVES v. Floyd J. QUEBEDEAUX, et al.
    No. 12385.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Walton J. Barnes, Baton Rouge, of counsel for plaintiff-appellant Industrial Sand & Abrasives.
    Joseph E. Windmeyer, Metairie, of counsel for defendant-appellee Floyd J. Quebe-deaux.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit on a promissory note by Industrial Sand and Abrasives, Inc. against Floyd J. Quebedeaux and Mrs. James N. Castille, whose names appear thereon as makers. Defendants denied the allegations of the petition, and, by way of defense, alleged that the obligation under the note had been discharged by Mr. Quebedeaux by virtue of certain work which had been performed by him for plaintiff. Mr. Quebe-deaux also reconvened for monies allegedly owed him by plaintiff.

The note sued on was alleged to have been dated July 31, 1976. At the trial, however, the president of the plaintiff corporation testified that the note was actually executed in September, and the date, which appeared to have been written as “7-31-76” was actually “9-31-76”. When defense counsel objected to the introduction of the note into evidence because of the discrepancy in dates, plaintiff moved to amend his petition orally to conform to the evidence.

When the court permitted the amendment, defense counsel then moved to amend the answer orally to deny specifically the signature of Mrs. Castille. In permitting the amendment, the trial judge said:

“The only reason I am going to let you amend is because apparently there is a possibility that there was more than one note. I don’t know that there was, but there could have been more than one note. To that extent I will allow you to amend to deny the signature on this note.”

Plaintiff’s counsel objected prior to the court’s ruling, but, after the ruling, did not request a continuance. No formal written amendment to the pleadings was ever made by Mrs. Castille.

At the conclusion of the trial, the court rendered judgment in favor of plaintiff and against Mr. Quebedeaux, but dismissed this suit as to Mrs. Castille, who had denied signing the note. Plaintiff has appealed, putting at issue only the propriety of the judge’s permitting the amendment by defendant. Since Mr. Quebedeaux has neither appealed nor answered the appeal, the judgment is final as to him.

Our perusal of the record reveals that neither plaintiff nor Mrs. Castille ever filed a written amendment to their pleadings, following the trial of the case.

Article 852 of the Code of Civil Procedure requires that all pleadings be in writing. Even when the court has agreed to permit an amendment, evidence admitted pursuant to such an amendment over an objection cannot be considered if the amendment is, in fact, never made. See Cameron v. Winn Dixie, Inc., of Louisiana, 149 So.2d 680 (La.App. 4th Cir. 1963); Suffrin v. Dupont, 241 So.2d 581 (La.App. 1st Cir. 1970). Oral pleadings are not permitted in a court of record.

We think the interest of justice will best be served by remanding the case, with instructions to plaintiff and Mrs. Castille to properly amend their pleadings as permitted by the court; and for trial on the merits on the amended pleadings as to plaintiff and Mrs. Castille.

The judgment appealed from is reversed and set aside insofar as it dismisses plaintiff’s suit against Mrs. Castille, and the case is remanded to the trial court for proper amendment of the pleadings, and for trial on the merits pursuant thereto, as provided by law. Costs of this appeal shall be equally shared by the parties hereto, and assessment of other costs shall await final determination on the merits.

REVERSED AND REMANDED.


author: BLANCHE, Judge.

text:
    Enos VERDIN and Elizabeth Verdin, Plaintiffs and Appellants, v. The SOUTH COAST CORPORATION and Aetna Life and Casualty Insurance Company, Defendants and Appellees.
    No. 12386.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Refused Feb. 16, 1979.
    Christopher B. Siegrist, Houma, for plaintiffs and appellants.
    Carlos E. Lazarus, Houma, for defendants and appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is an action by plaintiff, Elizabeth Verdin, to recover for personal injuries received by her as a result of a fall on the front porch of a house owned by the defendant, The South Coast Corporation, on its Ashland Plantation in Terrebonne Parish. Also made a defendant was South Coast’s insurer, Aetna Life and Casualty Insurance Company. Mrs. Verdin’s husband, Enos Verdin, seeks recovery of medical expenses incurred as a result of her injuries.

The trial judge found that a lessor-lessee relationship existed between the parties and that the defendant was responsible for plaintiffs’ damages under LSA-C.C. art. 2695 but that Mrs. Verdin, through her own negligence, contributed to the accident and recovery was denied. He also found defendant negligent under LSA-C.C. art. 2315 for failure to provide a safe means of ingress and egress to the leased premises but denied recovery for the same reason. We affirm the dismissal of plaintiffs’ suit but for different reasons than those assigned by the trial judge.

First, we find that no lessor-lessee relationship existed between the parties, and second, that there was no breach of duty by the defendant toward plaintiffs. Consequently, we do not reach the issue of Mrs. Verdin’s negligence.

We adopt from the trial judge’s opinion the following factual recitation:

“Mrs. Verdin is 47 years of age and has been married to Mr. Verdin for about 30 years. They have lived in the house where the accident happened approximately 25 or 26 years.
“Testimony established that Mr. Verdin had been employed by the defendant, South Coast Corporation, for a number of years and had been allowed as a part of his employment to live rent free in the house where this accident occurred. In 1971 Mr. Verdin was injured and received a workmen’s compensation settlement from South Coast, and was allowed to continue living in the house although he was disabled and unable to perform any work or service for said company. Further, Mr. and Mrs. Verdin were allowed to live in said house without the payment of any rent or the performance of any service or work for the company.
“Shortly before the accident, Mrs. Ver-din left the house and went outside. When she started back into the house she climbed the front steps and when she stepped upon the porch she tripped over the edge of the porch floor where it joins the steps, and fell on the porch injuring her back. Exhibits ‘J-8’, ‘J-9’ and ‘J-10’ are photographs which clearly show the condition of the steps and the porch, as well as the area where Mrs. Verdin claims she tripped, or caught her foot, and fell. These photographs show and corroborate the testimony of Mr. and Mrs. Verdin that the boards of the porch extend slightly over the edge of the top step and also that several of the boards are not nailed and secured at that point but are slightly raised creating a small opening or area between the ends of the boards constituting the floor of the porch and the top step. Exhibit ‘J-8’ has been marked with the letter ‘A’ showing the board where Mrs. Verdin claims she caught her foot causing the fall. While there are no exact measurements showing the distance between the bottom of that board and the top of the step, the court would estimate that distance to be about an inch or an inch and a half. It is this condition or defect which plaintiffs claim was the cause of Mrs. Verdin catching her foot, tripping and falling on the porch causing her to be injured.
“It has been established beyond all doubt that the house was owned by defendant, South Coast Corporation. It has also been established, and it is not disputed, that Mr. Verdin had been employed by South Coast Corporation and that he and his wife had continuously lived and resided in said house for about 25 years with the consent and permission of South Coast Corporation. It has been further established that Mr. Verdin had been injured and was disabled and received a compensation settlement from South Coast Corporation in 1971, and although he had not performed any work or other service since his injury in 1971, as a former employee he and his wife were allowed to continue living in said house without the necessity of paying any rent.” (Record, pp. 56-58)

After the foregoing recitation, the trial judge then reasoned that although Mr. Ver-din did not pay any money for his occupancy and use of the premises, nevertheless, there was consent between the parties to a lease because “no effort was ever made to evict them or have them removed from said premises. Furthermore, Mr. and Mrs. Ver-din had earned the right to live in said house.” We do not find these reasons persuasive. We are convinced that after Mr. Verdin had retired or became unable to work because of disability his continued use of the property was by virtue of a custom that grew out of a paternalistic concern of sugar planters toward their old and faithful employees.

Earl S. Gravoir testified regarding the permissive use of the property by old employees and stated that in the twenty-seven years he was employed in the management of South Coast neither he nor anyone else, to his knowledge, ever told a worker that as a condition of employment the worker would be entitled to remain upon the property upon his retirement. He further testified that it was a custom in the industry to allow workers to stay on if the housing was available and not needed for another purpose, and this was permitted because the landowner knew that some of their people would have no other place to go.

Allowing workers to stay on the property after their retirement under these conditions certainly implies consent or permission to use the property, but we do not believe the mere sufferance of use by a landowner under these conditions constitutes a lease agreement. The Louisiana Civil Code provides:

“Art. 2670. To the contract of lease, as to that of sale, three things are absolutely necessary, to wit: the thing, the price, and the consent.”

We are unable to supply such consent from the foregoing facts so as to hold that there was either an intended or implied lease of the property.

In deciding whether defendant was guilty of negligence under Article 2315, we find that the condition of the steps was the cause in fact of the accident and injury to Mrs. Verdin but that the failure to repair the steps or give warning to plaintiffs as to their condition was not actionable. Plaintiffs lived on the premises, walked up and down the steps every day, and if the condition of the steps posed such a danger, plaintiffs either could have repaired the steps themselves or at least have avoided them.

Applicable here is a quotation from the case of Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976), as follows:

“The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. [Citations omitted].”

(334 So.2d at 410)

For the above reasons, the judgment of the trial court is affirmed, at appellants’ costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Larry MOSKAU, Plaintiff and Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant.
    No. 12416.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Gordon W. Matheny, Hammond, for Larry Moskau.
    Robert J. Young, Jr., New Orleans, for Insurance Co. of North America.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This appeal is brought by the insurer, Insurance Company of North America (INA), from a judgment rendered in favor of the insured, Larry Moskau, for the amount of an excess judgment along with an award for attorney’s fees.

This case is a sequel to O’Neal v. Southern Farm Bureau Insurance Co., et al, 325 So.2d 887 (La.App. 1st Cir. 1976) wherein this court reversed the trial court’s judgment and awarded to Lynette O’Neal a judgment against INA and Larry Moskau, jointly and in solido, the sum of $5,797.69 plus legal interest and a judgment against Larry Moskau for the sum of $3,578.00 plus legal interest.

The original action dealt with an auto accident wherein Mrs. O’Neal’s car was rear ended by Larry Moskau in a dense fog. The trial judge held the plaintiff, Mrs. O’Neal, contributorily negligent and ruled in favor of Moskau and INA.

The facts as found by this court in the original opinion are:

“On the morning of the accident plaintiff and Moskau were at the Office Lounge located on U.S. Highway 190 approximately three miles west of the City of Hammond, Louisiana. When plaintiff decided to leave the lounge at approximately two o’clock A.M. Moskau offered to follow her home to make sure that she got there safely because of the heavy, intermittent fog condition existing in the area. Moskau followed the plaintiff’s vehicle down the road although he could not see it because of the dense fog. As plaintiff reached the intersection of the Old Hammond Highway and the Pumpkin Center Road she slowed her vehicle to a speed of approximately 10 m. p. h. and activated her left turn signal indicator. However, before she could complete her turn onto the Pumpkin Center Road she was struck in the rear by the Mustang driven by Moskau.
“Mr. Moskau stated that there was a heavy fog bank at this intersection and that he did not observe plaintiff’s vehicle until he was forty feet from it. He immediately applied his brakes but could not avoid the collision. He stated that at the moment he first observed plaintiff’s vehicle he was traveling approximately 40 m. p. h.” 325 So.2d at 889.

In reviewing the trial court’s judgment, this court reversed the finding of contributory negligence on the part of Mrs. O’Neal and thus held Larry Moskau liable as well as INA for the injuries and damages suffered.

In addition to the defense of contributory negligence, INA asserted a lack of coverage based on its failure to receive notice of the accident until 2V2 years later, and thus its rights and defenses were prejudiced. In rejecting this defense, we relied on West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950).

In the instant case, Larry Moskau is suing for reimbursement of the excess judgment award along with attorney’s fees. Moskau testified that originally he informed his father-in-law, the owner of the car, that he ran into a bridge. Moskau was never served in the original action and only from the investigation of one of Mrs. O’Neal’s insurance companies did he learn of her suit. He explained that in late 1972, early 1973 he was informed by an insurance investigator that suit had been filed; however, he did not know at that time that the car was insured.

INA carried a $5,000/$10,000 policy covering the auto at the time of the accident. Mrs. O’Neal offered to settle with INA for $4,500.00 plus special damages and later that offer was raised to $5,000.00 plus special damages. The policy states:

“ . . . and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.”

The same settlement offer of $5,000.00 plus special damages was presented to Mr. Moskau’s attorney. He advised INA that an offer to settle was made and should it be refused, Moskau would look to INA for any excess judgment. Moskau also demanded a defense from INA which was never provided.

In finding the insurer liable for the excess judgment along with attorney’s fees, the trial judge rendered no reasons for judgment; therefore, this court must conclude that the trial judge found the defendant guilty of bad faith or lack of due care for refusing to settle along with breaching its contract to defend the insured by failing to provide him with an attorney.

On appeal the appellant asserts that the trial judge “erred in finding that the defendant, Insurance Company of North America, acted in bad faith and in an arbitrary and capricious manner in refusing to settle the claim of Lynette Foster O’Neal.”

DUTY OF INSURER TO SETTLE

Louisiana jurisprudence clearly establishes a duty upon an insurer to consider as paramount the interest of the insured when an offer to settle is made. The insurer has a duty to act in good faith and to deal fairly when handling and settling claims in order to protect the insured from exposure to excess liability. Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978), See Comment, Duty of Insurer to Settle, 30 La.Law Review 622 (1970).

This court in Cousins v. State Farm Mutual Automobile Ins. Co., 294 So.2d 272 (La.App. 1st Cir. 1974) writ refused 296 So.2d 837 (La.1974), considered the following factors in determining whether the insurer acted in “good faith” when refusing to settle, to wit:

“(1) The probability of the insured’s liability; (2) the adequacy of the insurer’s investigation of the claim; (3) the extent of damages recoverable in excess of policy coverage; (4) rejection of offers in settlement after trial; (5) the extent of the insured’s exposure as compared to that of the insurer, and (6) the nondisclosure of relevant factors by the insured or insurer.”

Although not an exclusive list of factors, the facts of the instant case reveal that the insurer exercised reasonable care in contemplating the refusal of the offer to settle. It is clear from the jurisprudence that the insurer need not prejudge the case but must use reasonable judgment to protect the interest of the insured. Champion v. Farm Bureau Insurance Co., 352 So.2d 737 (La.App. 3rd Cir. 1977) writ refused 354 So.2d 1050 (La.1978).

In reviewing the-actions of the insurer to determine whether the refusal to settle was arbitrary or capricious, the evidence presented demonstrates that the defendant did in fact try to perfect a settlement of Mrs. O’Neal’s claim for $3,000.00, which she rejected. This fact coupled with the arguable defense of contributory negligence on the part of Mrs. O’Neal, indicates to this court that the insurer exercised reasonable judgment in refusing to settle, and therefore, the trial judge erred in awarding the plaintiff a reimbursement for the excess judgment.

Though appellant did not assign the award of attorney’s fees as a specification of error in accordance with Rule IX-A, Uniform Rules—Courts of Appeal, same was argued before this court at oral argument, and thus, we have decided to review the trial judge’s award.

Upon notice of litigation, the insurer owes a duty to provide a competent defense. Smith v. Insurance Co. of State of Pennsylvania, 161 So.2d 903 (La.App. 1st Cir. 1964) writ refused 246 La. 344, 164 So.2d 350 (1964).

When the allegations of the petition, taken as true, establish a claim against the insured covered by the policy, the insurer owes the insured a defense. Benoit v. Fuselier, 195 So.2d 679 (La.App. 3rd Cir. 1967).

The insurance policy in question provides: “NOTICE
“In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable.”

Though notice of an accident comes a substantial amount of time after it occurred, as long as the rights of the insurer are not prejudiced by the delay, coverage still exists. Jackson v. State Farm Mut. Automobile Ins. Co., 211 La. 19, 29 So.2d 177 (1946).

We see no reason to differentiate the application of the no prejudice rule between coverage and those provisions of the policy which provide for a defense of the insured, especially in light of the rule that the duty of an insurer to defend its insured under a policy of liability insurance is of greater scope than the insurer’s duty to pay. Smith v. Insurance Co. of State of Pennsylvania, supra.

On reading Mrs. O’Neal’s petition, Moskau was alleged to have been negligent in the operation of the insured automobile. Previously in O’Neal v. Southern Farm Bureau Insurance Co., supra, we found no prejudice. Thus, we find that the judgment of the trial court awarding attorney’s fees is correct.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed as to the award for the excess judgment, and it is affirmed as to the award of attorney’s fees. Appellant and appellee are to equally share in the costs of this appeal.

REVERSED IN PART AND AFFIRMED.


text:
    Roy VERDIN, d/b/a Roy’s Speed Equipment & Auto Repairs, Plaintiff and Appellee, v. UNICO, INC., Defendant and Appellant.
    No. 12418.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.

      Carlos E. Lazarus, Houma, for plaintiff and appellee.
    Leopold B. Babin, Houma, for defendant and appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is a suit to enjoin the enforcement of a valid judgment by default rendered in the matter entitled “Unico Inc. vs. Roy Verdin d/b/a Roy’s Speed Equipment and Auto Repair,” being No. 51,978 on the docket of the Thirty-second Judicial District Court. In connection therewith, the trial judge was persuaded to issue a temporary restraining order, restraining execution of the judgment pending a hearing for injunctive relief, and finally, after a hearing on the rule, rendered judgment in Verdin’s favor granting injunctive relief. Unico has appealed. We reverse and will grant judgment in favor of defendant-appellant for attorney’s fees.

We recognize, ex proprio motu, that Verdin’s petition fails to state a cause of action. LSA-C.C.P. 927. Two bases are set forth in the petition as grounds for annulling the judgment; first, that Unico was and is not a corporation organized under the laws of the State of Louisiana, and second, that the true debtor was not Roy Verdin, individually, but a corporation through which Verdin did business. Neither allegation sets forth grounds on which a court could annul the original judgment.

Additionally:

“The rule settled by our jurisprudence is that, in the absence of a showing of a valid and sufficient reason for a defendant’s failure to defend a suit on which a default judgment has been taken, such a defendant cannot maintain an action for nullity of the default judgment based on alleged defenses of fraud or ill practices which could and should have been pleaded in the original suit. * * *
“And as this court said in Dixson v. Carter, * * * at page 230 of 138 So.2d [227], ‘ * * * the defendant must be deprived of the knowledge of the existence of the defense relied on, or of the opportunity timely to present it, by some intentional artifice, deception, fraud, or other ill practice on the part of the plaintiff.’ ”

Steele v. Ruiz, 202 So.2d 376, 378 (La.App. 4th Cir. 1967), and cases cited therein.

The first ground set forth by the petition should have been pled in the original action through the dilatory exception of lack of procedural capacity. The second ground set forth is a defense on the merits and should have been raised by a motion for summary judgment in the original action. The petition does not allege that Verdin was deprived of the opportunity to present the above defenses by some improper conduct of Unico.

Since both factual allegations should have been pled as a defense in the first action and since the petition as a whole fails to set out facts entitling Verdin to a judgment annulling the original judgment, the petition fails to state a cause of action to annul under Louisiana Code of Civil Procedure Article 2002 or 2004, and the temporary restraining order and preliminary injunction were improvidently issued.

Unico sought damages and attorney’s fees in connection with its motion to dissolve the temporary restraining order and appeals the trial court’s denial thereof. LSA-C.C.P. art. 3608 authorizes damages and attorney’s fees for the “wrongful” is- . suance of a temporary restraining order or preliminary injunction.

The temporary restraining order and preliminary injunction were “wrongfully” issued under LSA-C.C.P. art. 3608. The Third Circuit Court of Appeal noted in Roy v. Union Bank, 347 So.2d 286 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 895 (La.1977):

“The word ‘wrongful’ does not necessarily connote bad faith or connivance, but it does import the infringement of some right. The use of the injunctive process is an extreme remedy, and its improper issuance causes the mover to stand the responsibility therefor. * * ” (347 So.2d at 289)

There is no doubt that Unico’s right to enforce its final judgment was infringed upon by the injunctive process issued at Verdin’s behest without even the slightest color of law.

Counsel for Unico testified that he devoted eleven hours of his time and one hour of his client’s time to preparing and arguing his motion to dissolve. He also prepared and prosecuted this appeal. We believe $1,000 in attorney’s fees is reasonable damages for the wrongful issuance of conservatory process herein.

It is, therefore, ordered that the judgment of the trial court dismissing Unico’s motion to dissolve the temporary restraining order and granting Verdin’s motion for a preliminary injunction is reversed and the preliminary injunction is hereby vacated and the temporary restraining order dissolved. Judgment is also rendered in favor of appellant Unico and against appellee Verdin in the amount of $1,000 for the wrongful issuance of conservatory process. This matter is further remanded to the trial court to allow Verdin ten days in which to amend his petition to state a cause of action. LSA-C.C.P. art. 934. The costs of this appeal are to be paid by plaintiff-appel-lee.

REVERSED, RENDERED IN PART AND REMANDED.

      . LSA-C.C.P. art. 2002 provides:
      “A final judgment shall be annulled if it is rendered:
      “(1) Against an incompetent person not represented as required by law;
      “(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
      “(3) By a court which does not have jurisdiction over the subject matter of the suit.
      “Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.” LSA-C.C.P. art. 2004 provides:
      “A final judgment obtained by fraud or ill practices may be annulled.
      “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


author: ELLIS, Judge.

text:
    Mildred LEMOINE, wife of Albin J. Ricks, Sr., et als., Plaintiffs-Appellants, v. Richard ROBERSON and Donald Madden, d/b/a Don’s Bar, Defendants-Appellees.
    No. 12440.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      See also La.App., 349 So.2d 961.

      Glenn L. Morgan, New Orleans, for plaintiffs-appellants.
    Bernard S. Smith, Covington, for Richard Roberson, defendant-appellee.
    Marion Farmer, Covington, for Donald Madden, defendant-appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This suit is before us for the second time. In our first opinion, No. 11,444, 349 So.2d 961 (La.App. 1st Cir. 1977), we summarized the pertinent facts as follows:

“This is a suit for the wrongful death of John Kenneth Ricks. Plaintiffs are Mildred Lemoine, wife of and Albin J. Ricks, Sr., parents of the decedent; and Virginia M. Burgess, former wife of the decedent, and mother of Sharon Lynn Ricks, his minor daughter, on behalf of the said daughter. Defendants are Richard Roberson, who is alleged to be the killer of the decedent; and Donald Madden, owner of the bar in which John Kenneth Ricks was allegedly killed.
“Defendant Roberson filed two exceptions: a peremptory exception of no right or cause of action directed at Mr. and Mrs. Ricks, Sr.; and a dilatory exception of lack of procedural capacity, directed at Mrs. Burgess.
“After a hearing, judgment was rendered sustaining the peremptory exceptions and dismissing the suit by Mr. and Mrs. Ricks, Sr. against Mr. Roberson. The judgment further sustained the exception of lack of procedural capacity, but granted Mrs. Burgess until January 12,1977, to qualify as tutrix for her minor child. Subsequently, Mrs. Burgess was granted an extension until February 14, 1977. “Thereafter, all three plaintiffs took a devolutive appeal from the said judgment.
“With respect to the appeal by Mrs. Burgess, we note that the judgment is interlocutory with respect to her, and therefore not appealable. No judgment dismissing her suit for noncompliance with the order of the judgment appealed from appears in the record, nor has irreparable injury been shown. Articles 1841, 2083, 933, Code of Civil Procedure. The appeal, with respect to Mrs. Burgess, is therefore dismissed.”

We affirmed the judgment of the trial court insofar as it dismissed the suit of Mr. and Mrs. Ricks, Sr.

According to the records of this court, plaintiffs applied for a rehearing on July 26, 1977, which was refused on August 24, 1977. Notice of the refusal was mailed to counsel for plaintiffs by certified mail on August 24, 1977. Apparently this notice was lost in the mail, because no return receipt was received by our court, and there was no record of its having been received in the New Orleans post office. Counsel for plaintiffs alleges, in brief, that he never received the notice.

On March 20, 1978, defendant Roberson filed a motion to dismiss the suit, alleging that Mrs. Burgess had never qualified as tutrix of her minor child. Plaintiffs excepted to the jurisdiction of the court to dismiss the suit, alleging the case to be pending before this court. It was argued that notice of the refusal of the rehearing had never been received, and the judgment of this court was therefore not final.

After a hearing, judgment was rendered dismissing the petition of Sharon Lynn Ricks, with prejudice, as to Richard Roberson. From that judgment, plaintiffs have appealed.

Article 2167 of the Code of Civil Procedure, as it read prior to January 1, 1978, provided:

“A judgment of an appellate court becomes final and executory when the delay for applying for a rehearing has expired and no application therefor has been made.
“When an application for a rehearing has been applied for timely:
(1) A judgment of the supreme court becomes final and executory when this application is denied; and
(2) A judgment of a court of appeal becomes final and executory when the supreme court denies a timely application for a writ of certiorari in the case; or on the expiration of thirty days after the denial of a rehearing by the court of appeal, if no timely application has been made to the supreme court for a writ of certiorari.”

Contrary to plaintiffs argument, there was no requirement that notice of the refusal of a rehearing be given to a party. See Rule XI, Uniform Rules, Courts of Appeal.

This judgment of this court, therefore, became final 30 days after August 24, 1977, and the jurisdiction of the trial court once again attached. It could properly dismiss plaintiffs case for failure to comply with its order of January 27, 1977. Plaintiffs objection is entirely technical in any event, since she states in her brief that her counsel inquired of the clerk’s office as to the disposition of the rehearing application shortly after it was decided.

On the merits of the exception of procedural capacity, Article 683 of the Code of Civil Procedure provides:

“An unemancipated minor does not have the procedural capacity to sue.
“Except as otherwise provided in Article 4431, the tutor appointed by a court of this state is the proper plaintiff to sue to enforce a right of an unemancipated minor, when (1) one or both of the parents are dead, (2) the parents are divorced or judicially separated, or (3) the minor is an illegitimate child.”

It is clear from the record that Mrs. Burgess has never qualified as tutrix of the minor. It is argued on her behalf that, under Article 235 of the Civil Code, she does not have to qualify as tutrix in order to represent her minor child in court. It is further contended that she cannot qualify as tutrix because the minor is domiciled in Florida, which is alleged to have no tutorship law. Finally, she argues that there is no proper venue for a tutorship proceeding in Louisiana since the minor owns no property in the state.

Article 235 of the Civil Code is a general grant of authority, which is limited in its application by Article 683 of the Code of Civil Procedure, a specific procedural provision. The first contention is without merit.

As to the second contention, the minor in this case does have movable property in Louisiana: her cause of action in this suit. It is, of course, located in St. Tammany Parish, where the suit was filed. Article 4032 of the Code of Civil Procedure states:

“If the minor is not domiciled in the state, a petition for the appointment of a tutor may be filed in any parish where:
(1) Immovable property of the minor is situated; or
(2) Movable property of the minor is situated, if he owns no immovable property in the state.”

Therefore, even if plaintiffs’ doubtful and unsupported assertion that the State of Florida has no laws governing tutorship or guardianship proceedings is true; and if the unproven assertion that the minor is domiciled in the State of Florida is true, there is an express provision of our law for the proper venue for tutorship proceedings under those circumstances. The second contention is without merit.

However, the dismissal of the suit with prejudice was not proper. When a suit is dismissed for failure of a party to comply with a judgment sustaining a dilatory exception and ordering the plaintiff to remove the objection raised by the exception, the dismissal must be without prejudice. Articles 926, 933, Code of Civil Procedure; Cheramie v. Rodrigue, 250 So.2d 514 (La.App., 1st Cir. 1971).

The final specification of error relates to the cause of action by the parents of the deceased. This, of course, was disposed of in our first opinion, and is not a part of the judgment appealed from.

The judgment appealed from is therefore amended so as to make the dismissal of the suit as to Richard Roberson without prejudice, and, as amended, it is affirmed, at plaintiff’s cost.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    CITIES SERVICE COMPANY v. Shirley McNAMARA et al.
    No. 12289.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.
    G. Allen Kimball, Lake Charles, Graydon D. Luthey, Victor K. Kulp, James W. Robinson, Tulsa, Okl., for plaintiff-appellant Cities Service Co.
    David Dawson, Riley F. Boudreaux, Jr., Baton Rouge, for defendant-appellee Shirley McNamara, Collector of Revenue, etc.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff sued to recover 1971 and 1972 Louisiana franchise taxes paid under protest. The primary issues are: can the state include a parent company’s equity interest in a subsidiary entered on the parent company’s books for the purposes of determining the parent’s franchise tax; and can a reversing entry removing an equity interest in a subsidiary have retroactive effect.

The lower court found for the defendant. Plaintiff appealed. We affirm.

Prior to 1966, plaintiff showed on its books at cost its investment interest in its subsidiaries. In 1966 the company changed to the equity method of accounting in which the parent company recognizes its share of the earnings and losses of its subsidiary without awaiting the subsidiary’s declaration of a dividend.

Audits of the plaintiff’s books prior to 1975 overlooked the declared equity. However, in that year, a general audit was made and the equity was discovered. A special assessment based on the equity figures was made. The company entered a reversing entry removing the equity figure for 1975 and claimed that the entry had retroactive effect.

The corporation franchise tax is imposed upon the issued and outstanding capital stock, surplus, undivided profits and borrowed capital. The value ascribed to surplus and undivided profits is that reflected on the corporation’s books, subject to revision by the collector, who, however, cannot ascribe a higher value than cost, “provided that in no event shall such value be less than is shown on the books of the taxpaying corporation.”

The lower court found that the case of Maplewood Housing Corporation v. Fontenot, 238 La. 378, 115 So.2d 386 (1959) to be controlling, and we agree. There the corporation had by bookkeeping entries recognized the value of some assets that had increased above cost. The court found that the portion of the statute quoted above required the collection of the tax based upon the increased value. We believe, similarly, that the statute requires the affirmation of the judgment.

Appellant asserts that the statute contains ambiguities and contradictions requiring interpretations to the taxpayer’s benefit. The court in Maplewood, supra, had no difficulty with the statute, nor do we. The section clearly empowers and requires the collector to use the figure on the taxpayer’s books.

Appellant’s contention that both the cost and the equity figures were on its books and that the,collector was required to employ the cost figure and to disregard the entries using the equity method is without merit. The entries recognized the parent’s interest in the subsidiary’s surplus resulting in a value above cost ascribed to the investment in the subsidiary. That the cost and equity figures are contained in separate entries does not require the collector to ignore the latter.

Appellant’s claim of discrimination in the imposition of the tax was found by the lower court to be without merit. We agree. The difference in treatment between those employing the equity method and those not is based upon the difference of the value of assets recognized by those employing the method and not upon the whim or caprice of the collector. The distinction is a real one, based upon the taxpayer’s books.

Taxpayer’s contention that prohibited double taxation results from the collector’s action is also without merit. See Arkansas Fuel Oil Corp. v. Fontenot, 225 La. 166, 72 So.2d 465 (1954).

On the second issue, the trial court found for the defendant based on Maplewood, supra, which held that only when an entry on a ledger is a bookkeeping error can a reversal have retroactive effect. In this case, the company deliberately and voluntarily recorded equity on its books, although based, perhaps, on a misinterpretation of an Accounting Principles Bulletin. The “entry was a deliberate act on the part of the corporation and one which it had every right to make”. Maplewood, supra. There was no bookkeeping error in the sense employed in Maplewood and the reversing entry does not have retroactive effect.

We therefore affirm. The costs are assessed against the appellant.

AFFIRMED.

      . LSA-R.S. 47:602:
      “A. Taxable capital. Every corporation taxed under this chapter shall determine the amount of its issued and outstanding capital stock, surplus, undivided profits and borrowed capital as the basis for computing the franchise tax levied under this chapter and determining the extent of the use of its franchise in this state.
      “B. Holding corporation deduction. Any corporation having as a subsidiary a banking corporation as defined below shall be entitled to deduct from its capital stock, surplus, undivided profits and borrowed capital, as defined in this chapter, its investments in and advances to such subsidiary banking corporation to the extent that such investments and advances exceed the difference between the total assets and the capital stock, surplus, undivided profits and borrowed capital of the holding corporation. ‘Subsidiary banking corporation’ is defined to be a banking corporation organized under the laws of the United States of America or of the state of Louisiana- the capital stock of which to an extent of at least eighty percent is owned by a holding corporation.
      “C. Public utility holding corporation deductions. Any corporation registered under the Public Utility Holding Company Act of 1935 having subsidiary corporations as defined here-inbelow, shall be entitled to deduct from the amount of its Louisiana taxable capital the amount of its investments in and advances to subsidiary corporations allocated to Louisiana under R.S. 47:606B in computing its franchise tax. ‘Subsidiary corporation’ is defined to be a corporation in which at least eighty percent of the voting power of all classes of its stock (not including nonvoting stock which is limited and preferred to as dividends) is owned by a registered public utility holding corporation.”

      . LSA-R.S. 47:605:
      “A. Determination of value. For the purpose of ascertaining the tax imposed in this Chapter, surplus and undivided profits shall be deemed to have such value as is reflected on the books of the corporation, subject to examination and revision by the collector from the information contained in the report filed by the corporation as hereinafter provided and from any other information obtained by the collector; but in no event shall such revision reflect the value of any asset in excess of the cost thereof to the taxpayer at the time of acquisition; in the case of an acquisition which qualifies as a tax free exchange under R.S. 47:131, 132, 133, 135, 136, 137 and 138, cost to the taxpayer at the time of acquisition shall be deemed to be the basis of such property determined under R.S. 47:146, 148 and 152; provided that in no event shall such value be less than is shown on the books of the taxpaying corporation.


text:
    E. L. GHOLAR and Alice Gholar, Plaintiffs and Appellees, v. SECURITY INSURANCE COMPANY OF HARTFORD, A. D. Singletary and Dixie Auto Insurance Company, Defendants, A. D. Singletary and Dixie Auto Insurance Company, Defendants and Appellants.
    No. 12320.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Robert J. Mack, of Mack & O’Neal, Hammond, for plaintiffs.
    John W. Anthony, of Talley, Anthony, Hughes & Knight, Bogalusa, for defendants, A. D. Singletary and Dixie Auto Ins. Co.
    Michael J. Paduda, Jr., of Gallaspy & Paduda, Bogalusa, for A. D. Singletary, individually.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the assessment to it of the cost of a jury even though it was found not liable. The issue is whether a party winning a judgment can be assessed the cost of a jury because he requested a jury trial.

We amend that portion of the judgment which assesses jury costs to the defendant and affirm.

The plaintiff allegedly fell out of a truck driven by an employee of defendant while the employee was in the course and scope of his employment. The defendant requested a jury trial and posted the required security. The jury found for the defendant. The final judgment taxed the plaintiff with all the ordinary costs of the proceedings and defendant with the additional cost of a jury trial.

LSA-R.S. 13:3050 states, in pertinent part:

“In all civil cases in which a jury is prayed for and allowed, the party praying for the jury shall give bond in favor of the parish for such amount as may be determined by the judge to cover the cost of the jury, which cost shall be taxed as provided for in Louisiana Code of Civil Procedure Articles 1920 and 2164.”

C.C.P. Art. 1920 gives the court discretion to assess costs but limits this discretion. The general rule is that the party cast in judgment should pay all costs of the trial. Custom Builders & Supply Inc. v. Revels, 310 So.2d 862 (La.App., 3d Cir. 1975).

A trial judge can abuse his discretion under C.C.P. Art. 1920 by assessing costs to defendants who have been found to be not negligent and who have not prolonged the trial. Johnson v. Marshall, 202 So.2d 465 (La.App., 1st Cir. 1967).

The jury found the defendant free from negligence; there is no indication that the defendant prolonged the trial. The request by defendant for a jury trial is insufficient ground to assess the cost therefore to the defendant.

We therefore amend the judgment to assess all costs to the plaintiff. The costs in this court is assessed to appellee.

AMENDED AND AFFIRMED.


text:
    Danny A. DUFRENE v. Kathy Bradford DUFRENE.
    No. 12330.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Francis Dugas, Thibodaux, for petitioner and appellee.
    John T. Bourgeois, Thibodaux, for defendant and appellee.
    Christopher M. Smith, Golden Meadow, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

In this disavowal action the attorney for the child appealed from the ruling that plaintiff was not the father of the child.

The issue is the validity of the use of blood tests to disprove paternity. We affirm.

Defendant, Kathy Dufrene, abandoned her husband and their legitimate child in April, 1976, to accompany a male companion to California. She returned to Louisiana in July and lived in her husband’s house for three days. She claims she had sexual intercourse with her husband; he denies any.

On November 19, 1976 the' husband obtained a legal separation on the ground of abandonment. On March 16, 1977 the husband obtained a divorce based on adultery. Seven days before the divorce was granted the subject of the disavowal action was born.

The most recent amendments to Revised Civil Code Articles 184 through 190 retains in Art. 184 the basic premise that the husband of the mother is presumed to be the father of all children born or conceived during the marriage. However, Article 187 now provides that a husband can disavow a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father. The Official Comments under this article includes as an example of such evidence blood grouping test results or any other reliable scientific results that preclude paternity.

Blood tests to determine paternity have been recognized by the Legislature in The Uniform Act on Blood Tests to Determine Paternity (LSA-R.S. 9:396 et seq.). The paucity of cases interpreting the act may be ascribed to the fact that in most instances blood tests are not determinative of paternity. However, in this ease the possibility of paternity is excluded by the findings of the court appointed expert.

Appellant relies on Brugman v. Prejean, 288 So.2d 702 (3d Cir. 1974) for the proposition that a new cause of action for disavowal based upon blood tests was not created by LSA-R.S. 9:396 et seq. This confidence is misplaced. The holding of that case is that even in the case of blood tests the code articles limiting the disavowal action, specifically Art. 190, would still be applicable. The overly broad and ambiguous statement that the Uniform Act did not create a new cause of action should be held to have been limited by the clause, “not subject to the provisions of the Louisiana Civil Code,” and by the holding of the case. This holding was more exactly stated in Smith v. Smith, 300 So.2d 205 (3d Cir. 1974).

At any rate the question has now been made moot, we believe, by the 1976 amendment to Art. 187.

For these reasons we affirm the judgment. Since the appellant is the attorney appointed to represent the child we tax the costs to the appellee.

AFFIRMED.

      . The expert’s conclusions in this case are as follows:
      “There is a contradiction to the laws of theoretical expectancy in that a child who is NN must have inherited the N gene from both parents. The mother is type MN and the baby could have inherited one N gene from her. However, the alleged father is type MM and does not have an N gene for this child to inherit. Paternity is therefore excluded.”


author: LANDRY, Judge.

text:
    Michael F. BILLIOT v. SENTRY INSURANCE.
    No. 12331.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Refused Feb. 16, 1979.

      Stanley L. Perry, Galliano, for petitioner and appellant.
    Edward L. Levert, Jr., of Young, McMahon & Levert, New Orleans, for defendant and appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting his claim for medical benefits allegedly due under an automobile policy issued by defendant (Appellee) on Appellant’s vehicle. The trial judge dismissed Appellant’s demand upon finding no such policy coverage. We reverse and render judgment in favor of Appellant reforming the policy to include medical payment coverage.

The sole issue presented is whether Ap-pellee is liable for having failed to provide requested medical payment coverage in the policy issued to Appellant.

There is no dispute as to the salient facts. There is dispute, however, concerning the inference, assumptions and conclusions to be drawn from certain admitted circumstances. In March, 1976, Appellant applied to the A. J. LeBlanc Agency, Cutoff, Louisiana, for non-owner automobile liability coverage. Because of Appellant’s unfavorable driving record, the LeBlanc Agency, an agent of State Farm Mutual Automobile Liability Insurance Company, could not place the desired insurance with State Farm. Since Appellant qualified for Louisiana’s “assigned risk program” (pursuant to which poor risk applicants for automobile liability coverage are submitted to a state agency which mandatorily assigns the coverage to a specific insurer qualified to do business within the state), the LeBlanc Agency sent Appellant’s application to assigned risk. The request was assigned to Appellee who issued Appellant a non-owner’s policy for the period April 1, 1976, to April 1, 1977, for a premium of $114.00. This policy did not provide medical payments coverage because no such coverage was requested.

In June, 1976, Appellant purchased an automobile and immediately contacted the LeBlanc Agency requesting a change from a non-owner’s policy to an owner’s policy on his newly acquired vehicle. It is conceded that Appellant paid an additional premium of $177.00 for the owner’s policy protection extended for the unexpired portion of the policy period.

It is stipulated, inter alia, that Appellant received personal injuries in a one car accident which occurred on October 2,1976, and which injuries resulted in medical expenses in excess of the $5,000.00 medical payments coverage allegedly requested by Appellant. The application submitted by the LeBlanc Agency for the owner’s coverage desired by Appellant requests the following changes in the non-owner policy then in effect:

“Please change to owned policy— AB-5/10-C-5,000 UM5/10-Wife Elaine is now driving Date of Birth 4/10/56 Soc Sec [ XXX-XX-XXXX ] Lie. # 4377782 Please add her to policy”

Appellant maintains that the LeBlanc Agency accepted and forwarded Appellee a premium for the medical payments coverage requested and that LeBlanc represented to Appellant that the policy issued by Appellee provided such coverage. Appellant contends the trial court erred: (1) In failing to find that Appellant requested medical payments coverage; and (2) In failing to find that LeBlanc neglected to request such coverage and that since LeBlanc is the agent of Appellee, Appellee is liable for LeBlanc’s negligence.

The policy issued by Appellee pursuant to the above mentioned request for policy change affords automobile bodily injury coverage in limits of $5,000-$10,000; property damage liability coverage in the sum of $5,000; uninsured motorist coverage in limits of $5,000-$10,000; and, coverage for physical damage to the insured vehicle, a 1969 Plymouth, as requested. It does not include coverage for medical payments.

A. J. LeBlanc was the only witness who testified at trial. He explained that normally he represented only State Farm and that he sent Appellant’s application for insurance to assigned risk only because State Farm would not write the business due to Appellant’s driving record. He noted that State Farm and most other companies use the symbols AB to represent bodily injury liability coverage and property damage liability coverage and the symbol C to represent medical payments coverage. He acknowledged, however, that all companies do not follow this system. LeBlanc also noted that he never offers owner policies to a prospective policyholder without including medical payments coverage and that when he prepared the application for Appellant’s desired owner coverage, it was intended to include a request for medical payments coverage. He admitted, however, that in preparing the application his secretary, to whom the matter was referred, mistakenly failed to include a “slash five” after the symbols “AB-5/10,” which would have indicated a request for $5,000 property damage liability coverage. According to LeBlanc, the application as submitted to Appellee requested $5,000 medical payments coverage indicated by the “C-5,000” and erroneously failed to request $5,000 property damage liability coverage. LeBlanc further explained that Appellee’s employee who processed the application evidently interpreted the request for “C-5,000” to indicate a request for property damage liability coverage and wrote the coverage accordingly.

The trial judge rejected LeBlanc’s testimony on the ground that it varied the policy coverage in violation of LSA — R.S. 22:628 which provides:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance

LeBlanc’s testimony does not fall within the ambit of the above mentioned statute. It was not offered to prove an agreement in conflict with or modifying or extending coverage of a policy. It was offered, rather, to show that the policy issued did not conform to the desires of the policyholder as indicated by the application submitted for the insurance.

Prom the record, we are convinced that the application in question was ambiguous. This is necessarily so because LeBlanc deemed the symbol “C-5,000” a request for medical payments and Appellee considered it a request for property damage liability coverage. It is significant in this regard that the policy in question contains no AB symbol but does contain a “Coverage C— Bodily Injury Liability,” but not property damage liability which is designated Coverage D in Appellee’s policy.

Our jurisprudence recognizes that in certain instances of mistake, error or negligence on the part of an agent or employee of an insurer, a policy erroneously issued will be reformed to conform with and reflect the original intent of the parties. Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973); Urania Lumber Company v. Insurance Co. of North America, 177 So.2d 640 (La.App. 3rd Cir. 1965); Maggio v. State Farm Mutual Automobile Ins. Co., 123 So.2d 901 (La.App. 1st Cir. 1960); Maryland Casualty Company v. Kramel, 80 So.2d 897 (La.App. 2d Cir. 1955).

We pretermit consideration of an agency relationship between Appellee and the LeBlanc agency because we find independent negligence on the part of Appellee. Under the circumstances of this case, Ap-pellee, confronted with an ambiguous application containing symbols representing coverage requests, which symbols differed from its own, should have made inquiry of the forwarding agency as to the precise coverage desired. Appellee should have known that bodily injury liability was requested by the request for AB 5/10; therefore, the request for “C-5,000” did not refer to bodily injury liability coverage but to some other coverage. In other words, Ap-pellee concluded that the request for C coverage was a request for its D coverage. In this Appellee was mistaken. Having opted to unilaterally resolve the ambiguity, Ap-pellee must bear the responsibility for its error.

The judgment of the trial court is reversed and judgment rendered herein in favor of Appellant against Appellee in the sum of $5,000.00 with legal interest thereon from date of judicial demand until paid, and all costs of these proceedings.

Reversed and rendered.


text:
    Janet Voorhies DURBIN et al. v. CITY OF BATON ROUGE et al.
    No. 12335.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Charles W. Rea, Baton Rouge, of counsel for plaintiff-appellee Janet Voorhies Dur-bin, et al.
    Parish Atty. Joseph F. Keogh, Asst. Parish Atty. Charles E. Pilcher, Baton Rouge, of counsel for defendant-appellant City of Baton Rouge, et al.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

The issues in this tort suit are: Does strict liability under LSA-C.C. Art. 2317 apply to governmental agencies; and what court costs are to be assessed to governmental agencies.

The lower court held that C.C. Art. 2317 did apply to the City of Baton Rouge and assessed all court costs to the city. We affirm.

The plaintiff, Janet Durbin, suffered personal injuries and property damage when a large tree limb fell onto her car which she was occupying. The tree, situated on a street right-of-way belonging to the City of Baton Rouge, was proved to be rotted. However, there was no proof that the defect was apparent or that the city had notice of any defect.

In American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978), we held that C.C. Art. 2317 did apply to the department of Highways, even though no liability to that defendant resulted because of the fault of a third person. The Supreme Court denied writs, 356 So.2d 430, 434, 435 (La.1978). We found nothing in the words of C.C. Art. 2317 or of Loescher v. Parr, 324 So.2d 441 (La.1975), to justify a governmental agency being treated differently from a private defendant. We adhere to that opinion.

It is true that the Third Circuit in Gallien v. Commercial Union Insurance Co., 353 So.2d 1127 (La.App. 3d Cir. 1978), held that C.C. Art. 2317 did not apply to governmental entities. The Supreme Court denied a writ there also. The court’s rationale was that the strict liability of Art. 2317 had not yet been held applicable to governmental agencies and that the Supreme Court had not taken an opportunity to do so but had looked for and found notice of the defect before finding liability. United States Fidelity and Guaranty Company v. State of Louisiana, Dept. of Hwys., 339 So.2d 780 (La.1976). The Supreme Court also denied a writ in the Gallien case. 354 So.2d 1379 (La.1978).

It is also true that there are some economic justifications for exempting governmental agencies. These were recognized in both the Gallien and in The American Road Insurance Company cases. We feel now, as we did formerly, that the question of exemptions is properly addressed elsewhere.

The City of Baton Rouge complains that it was assessed all costs in violation of LSA-R.S. 13:4521. However, the recent case of Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978), held that the provisions of that statute were superseded by Section 10(A) of Article XII of the Constitution of 1974 to the effect that the state, a state agency or a political subdivision shall not be immune from suit and liability in contract or for injury to person or property.

For these reasons, the judgment is affirmed. The costs are assessed against the appellant.

AFFIRMED.

      . LSA-R.S. 13:4521:
      “Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony. As amended Acts 1964, No. 509, § 1.”


text:
    Brenda Thomas GARDNER v. Roy Gene GARDNER.
    No. 12336.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Robert R. Rainer, Baton Rouge, of counsel for plaintiff-appellee Brenda Thomas Gardner.
    David L. Dawson, Jr., Baton Rouge, of counsel for defendant-appellant Roy Gene Gardner.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment increasing child support payments due plaintiff (Appellee) for the support of the parties’ minor son, and also awarding Appellee attorney’s fees incident to Appellee’s rule to increase alimony and make executory unpaid medical expense owed by Appellant for medical services furnished the child. We affirm.

The parties were divorced by judgment rendered November 25, 1975, which decree awarded custody of the child, then five years old, to Appellee. In addition to ordering Appellant to pay child support in the amount of $85.00 every two weeks, the trial court also ordered Appellant to pay hospitalization insurance on the child and one-half of all medical and dental bills not covered thereby.

Appellant has paid all alimony payments when due. Between March and August, 1977, Appellee incurred medical expense in the sum of $280.00 for psychological treatment and consultation for her son who was having emotional problems. Hospitalization insurance maintained by Appellant discharged $50.00 of this amount, leaving a balance of $230.00 to be shared by Appellant and Appellee pursuant to the judgment of divorce. Appellee paid her share of the obligation and by letter dated March 20, 1978, made demand on Appellant for payment of Appellant’s share, $115.00. Appellant declined to pay $115.00 because he felt a portion of the charge represented consultation for Appellant herself.

This present rule seeks to hold Appellant in contempt, make executory Appellee’s claim for medical payment in the amount of $115.00, increase the bi-monthly alimony payments, and recover attorney’s fees for making the past due payment of medical expense executory. Appellant has reconvened requesting a reduction in the alimony payments previously ordered. Appellant shows that he has remarried and has one child by his second wife and, in addition, his present spouse has custody of two children of her prior marriage.

Immediately prior to hearing the present rules, Appellant paid Appellee the $115.00 medical expense demanded. Consequently, the hearing was limited to Appellant’s claim for an increase in child support and attorney’s fees allegedly due for having to institute suit on the medical expense claim.

The trial judge increased child support payments from $85.00 to $100.00 every other week but declined to hold Appellant in contempt for failing to pay the medical expense claimed, apparently upon finding Appellant was in good faith in questioning the amount of the bill presented. In this regard, the record reflects that a portion of the medical charges was for medical consultation with Appellee concurrent with consultations for the child. Finding that consultation for Appellee was an integral part of the child’s treatment, the trial court awarded $100.00 as attorney’s fees reasonably attributable to Appellee’s action to reduce to judgment the amount claimed for medical expense incurred for the child. Appellant contends the trial court erred in increasing the alimony award and granting attorney’s fees.

INCREASE IN CHILD SUPPORT

Each party spent considerable time in presenting a detailed, itemized account of their respective monthly household expenses. The record discloses that at the time of divorce in 1975, Appellee was earning approximately $433.00 monthly and was provided $50.00 monthly insurance benefits by her employer. Additionally, Appellee received $170.00 monthly child support payments from Appellant. At this same time, Appellee’s expenses approximated $522.00 per month. Since the divorce, Appellee has obtained new employment netting her $625.00 per month income. As submitted at trial, Appellee’s present monthly expenses total over $1,000.00. A pay increase of $75.00 per month granted Appellee in the current year has been offset by a $70.00 per month increase in the rent for her subsidized apartment since rent is based upon her income.

Appellant is presently employed at a net monthly pay of $1,280.00. His present spouse receives $300.00 monthly support for the two children of her prior marriage. In addition, Appellant’s present wife received $7,000.00 or $8,000.00 cash in settlement of her prior community as well as some furniture, appliances and an automobile. A portion of said cash settlement was used to purchase a tract of land upon which Appellant and his present wife plan to build a family home. Appellant concedes that he deposits $50.00 monthly in a savings account for the benefit of his child of his second marriage.

Trial courts are vested with considerable discretion in awarding child support incident to actions for separation or divorce. Shanklin v. Shanklin, 339 So.2d 1262 (La.App. 1st Cir. 1976); Phillips v. Phillips, 319 So.2d 566 (La.App. 4th Cir. 1975).

Under the circumstances of this case, we find no abuse of the trial court’s discretion in increasing child support payments by the sum of $30.00 per month.

ATTORNEY’S FEES

Despite Appellant’s payment of the $115.00 claimed by Appellee as medical expense for which Appellant was liable pursuant to the original alimony decree, the trial court nevertheless awarded $100.00 attorney’s fees which the trial court felt was adequate compensation for counsel’s efforts to render this item executory. The court noted that payment immediately before trial of the rule was prompted by the demand brought by counsel and, therefore, attorney’s fees were allowable pursuant to La. R.S. 9:305 (Act 462 of 1977) which pertinently provides:

“When the court renders an executory judgment incorporating the payment of child support or alimony in arrears, the court may award reasonable attorney fees in favor of the prevailing party.”

Appellant maintains the statute is applicable only when judgment is rendered making arrearages executory and no such decree was entered herein because Appellant voluntarily paid the amount claimed for this item.

It is Appellant’s position that the legislature intended La.R.S. 9:305, above, as a penalty imposed on a parent delinquent in support payments due a minor child..

Our prior jurisprudence evidences some difference of opinion among the intermediate appellate courts on this issue, despite the following pronouncement on the subject by our Supreme Court in Newson v. Newson, 176 La. 699, 146 So. 473 (1933):

“It is the duty of a father to contribute to the support of his child. Civ. Code, art. 229.
. Alimony, it may be said, is essential for the child’s sustenance. When payment of it is refused, or a sufficient amount is refused, the child should be placed in position to obtain it, and this may be accomplished only by allowing reasonable attorney’s fees, where the child is successful. The alimony allowed should not be eaten up partially by attorney’s fees, and the child thereby deprived, in part, of the object and purpose of allowing it. This is implied in the reason of the law for granting alimony. . .”

(Emphasis supplied).

In Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App. 3d Cir. 1975), our brothers of the third circuit followed Newson, above, and awarded attorney’s fees to a mother who filed suit to enforce payment of past due child support owed by the father.

Since the advent of La.R.S. 9:305 (Act 462 of 1977), this court in Smith v. Smith, 357 So.2d 873 (La.App. 1st Cir. 1978), and Almond v. Almond, 357 So.2d 875 (La.App. 1st Cir. 1978), and our brothers of the fourth circuit, in Compton v. Bertaut, 359 So.2d 1131 (La.App. 4th Cir. 1978), declined to apply La.R.S. 9:305 on the grounds that either the judgment in question or the attorney’s services rendered antedated the effective date of the pertinent legislation. In this instance, however, the judgment and services- were both rendered subsequent to the effective date of the statute.

Appellant does not dispute his obligation to pay medical expenses in this instance; he merely contests the amount. It is obvious that the amount claimed, or at least some portion thereof, was due and owing when Appellee filed her rule to make the arrearage executory. The obvious purpose of La.R.S. 9:305 is to insure that of alimony payments due a minor child, the entire sum will be available for the minor’s support in the event the parent with custody is required to employ counsel to make such past due payments executory. The statute appears to be a codification of the hereinabove quoted language from Newson, above.

We are of the opinion that the salutary effect of La.R.S. 9:305 should not be allowed to be defeated by the expedient of a spouse in arrears tendering payment immediately before trial and after the spouse with custody has been compelled to engage counsel to enforce the arrearage. Any other holding would negate the purpose of such payments. For example, in the present instance, the sum of $115.00 thus recovered would be almost consumed by the attorney’s fees required to enforce the obligation.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Noless J. ARCENEAUX, Jr. and Virginia Lee Arceneaux v. Robert J. ADAMS and Evelyn M. Adams.
    No. 11339.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Stanley L. Perry, Galliano, for petitioners and appellants.
    Christopher M. Smith, Golden Meadow, for defendants and appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiffs, Noless J. Arceneaux and his wife Virginia Lee Arceneaux, appeal from judgment dismissing their claims for damages allegedly resulting from the failure of defendants, Robert Adams and his wife Evelyn, to take title and possession of certain real property pursuant to an executed but unrecorded act of sale with mortgage. The trial court rejected Appellants’ demands upon finding that the parties mutually rescinded the transfer by subsequent verbal agreement. The trial court also rejected defendants’ reconventional demand to recover certain items of expense allegedly incurred in operating a restaurant situated upon the premises. Since defendants have neither appealed nor answered plaintiffs’ appeal, the only issues before us are the claims of Appellants. The pivotal issue presented is whether an unrecorded act of sale with mortgage may be nullified by the parties by a subsequent oral agreement.

For several years prior to August, 1977, Appellants owned and operated a restaurant in a building which contained both the business establishment and Appellants’ living quarters. Because of Mr. Arceneaux’s ill health, the establishment was put on the market for sale and on August 1, 1977, an act of sale with mortgage was entered into between the Arceneauxs and Adamses pursuant to which defendants purchased the property for $50,000.00 of which amount the sum of $20,000.00 was to be furnished by the purchasers. It was understood the remaining $30,000.00 would be borrowed from a local bank. The instrument was confect-ed before J. J. Erny, Jr., notary public. It provides that the purchaser-mortgagor is required to keep the premises insured in the sum of $30,000.00. Approximately one week prior to signing the agreement, defendants, at the request of Appellants, took possession of the premises and began operating the. business which had apparently been closed for some time previously. After signing the agreement, defendants attempted to secure the required insurance but could not do so because of the prohibitive cost of quoted premiums. From this point, the sequence of ensuing events is somewhat confusing.

Defendants testified that upon informing Mrs. Arceneaux of defendants’ inability to obtain the insurance required by the act of sale and mortgage (which insurance was insisted upon by the prospective lender), on Friday, August 5, 1977, Mrs. Arceneaux ordered defendants to vacate the premises by the following Monday, August 8, because Mrs. Arceneaux had another buyer for the property. J. J. Erny, Jr., notary public, testified that upon being informed by Mr. Adams of the insurance problem he, Erny, informed plaintiffs that plaintiffs would not get their money; that the sale could not go through under the circumstances; that he recommended the agreement be can-celled; and that he advised against recording the instrument. Erny also testified that plaintiffs thereupon advised him to cancel the transaction following which either Erny or his secretary inscribed the word “void” in large letters upon the face of the instrument.

On September 30, 1977, Appellants filed suit for damages allegedly sustained during defendants’ two week operation of the restaurant, including loss of income, depletion of inventory and compensation for the interval allegedly involved in restoring the premises to operating condition. On October 31,1977, Appellants sold the premises to a third party for the price of $45,000.00. By supplemental petition, plaintiffs requested damages of $5,000.00 for the difference in sale price, and rental for the two week period during which defendants operated the business. Defendants’ reconven-tional demand included a claim for inventory left on the premises and the value of certain alleged improvements.

The trial court rejected the demands of all parties upon finding a mutual verbal agreement to rescind the transfer. He also concluded in part in reliance upon the testimony of the notary public, Erny, that Erny would not have marked the instrument void unless he had been verbally requested to do so by the vendors named therein. In making the decision, the trial court was also influenced by the fact that Appellants neither attempted to record the act of sale with mortgage nor sought specific performance of the contract. We note, in addition, that although both Appellants testified herein, neither denied having instructed Erny to void the instrument.

It is well settled that factual findings of the trier of fact are entitled to great weight on appeal and, when there is a conflict in testimony, reasonable inferences of credibility and reasonable inferences of fact made and drawn by the trier of fact are not to be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Not only do we find no manifest error in the trial court’s findings above noted, we note that the record amply supports these conclusions.

In contending that the trial court erred in allowing parol evidence to establish revocation of a contract required by law to be in writing (an act of sale with mortgage of real property), Appellants rely upon Hornsby v. Ray, 327 So.2d 146 (La.App. 3d Cir. 1976); Christ v. Christ, 251 So.2d 197 (La.App. 3d Cir. 1971); WWOM, Inc. v. Grapes, 181 So.2d 289 (La.App. 4th Cir. 1965).

We find the cited authorities distinguishably inapplicable to the case at hand in that each involved a contract not legally required to be in writing. For example, Hornsby, above, involved the question of whether a written lease may be modified verbally. Christ, above, raised the issue of whether a written lease may be rescinded by oral agreement. WWOM, above, concerned the question of whether a written contract for radio advertising time may be changed or altered by subsequent verbal agreement. We hold, therefore, that these authorities are not dispositive of the question of whether a contract legally required to be in writing may be revoked, amended or modified by subsequent parol agreement.

Pertinent herein are the provisions of La. C.C. Article 2275 which provides that every transfer of immovable property must be in writing and La.C.C. Article 2276, which states:

“Article 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

Our jurisprudence contains some apparent confusion and uncertainty on the question before us. In Salley v. Louviere, 183 La. 92, 162 So. 811 (1935), a suit on rent notes issued pursuant to a written lease, our Supreme Court interpreted Article 2276, above, to mean that although parol evidence timely objected to may not be received to modify, alter or vary the terms of a written instrument, parol evidence is admissible, nevertheless, to establish a subsequent agreement constituting a new contract between the parties, which new agreement has the effect of modifying or revoking an earlier contract. We note in Salley, above, language which appears to limit admissibility of parol evidence to cases involving contracts not required by law to be in writing. Despite such apparently qualifying language, we note instances wherein the Supreme Court, over timely objection, allowed parol evidence to revoke or modify agreements required to be in writing, on the theory that such testimony established a new and subsequent agreement independent of the previous contract. Thus, in Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97 (1941), parol evidence was received to show a subsequent new agreement concerning oil, gas and mineral subleases containing an option to purchase.

In Parlor City Lumber Co. v. Sandel, 186 La. 982, 173 So. 737 (1937), a subsequent parol agreement was admitted to establish an agreement whereby the maker of a collateral mortgage note was absolved of personal liability in consideration of his agreement not to bid on the mortgaged property at the foreclosure sale.

We note also Investors Homestead Ass’n. v. Anglada, 193 La. 596, 192 So. 69 (1939), which concerned a letter written by a husband and in which mention is made of the rule concerning admissibility of parol evidence to vary or modify a written instrument.

More particularly, we note Torrey v. Simon-Torrey, Inc., 307 So.2d 569 (La.1974) in which the Supreme Court’s original opinion appears to overrule the three authorities hereinabove cited, and reaffirm the rule of Salley v. Louviere, above, that a contract required by law to be in writing may not be revoked or modified by subsequent parol agreement. On rehearing, however, the Supreme Court expressly declined to rule on this precise question because it found such a ruling unnecessary to disposition of the case. It follows, we think, that the language in the original opinion in Torrey, above, on the issue of admissibility of parol evidence to modify or revoke an instrument required to be in writing, must be deemed obiter dicta.

In his dissent from the original opinion in Torrey, above, Justice Tate notes:

“I see no reason to overrule these cases, which I believe to represent the better view: The policy of the code articles is designed only to prevent the use of parol evidence to take away title to immova-bles, or the use of parol evidence to confer title to immovables. It does not include within its compass any arbitrary prohibition of the use of parol evidence to prove independent later agreements, relating to mortgage notes or interest due thereupon,”

In this instance the parol evidence tendered was not offered to establish, confer, take away or defeat title to immovable property. Neither was it offered against or beyond any provision of the written instrument concerned. It did not seek to show that the parties had agreed to some price other than the stated consideration or that the parties had originally agreed to some method of payment other than that stipulated in the written instrument. On the contrary, the evidence in question was offered to show a subsequent mutual agreement to cancel the transfer and return the parties to their ante written agreement status. We see no basis in reason, law or public policy which prohibits such a rule.

It is significant also that the parol evidence was not offered to enlarge, restrict or contradict any provision of the original agreement, but merely to show mutual intent to abrogate the entire arrangement. In this regard, our jurisprudence recognizes that contracts may be subsequently modified, abrogated or revoked by mutual consent of the parties. Bruhl v. White, 346 So.2d 734 (La.App. 1st Cir. 1977); Brooks v. Griggs Casing Crews, Inc., 136 So.2d 693 (La.App. 2d Cir. 1961). Having consented to abrogation of the agreement, Appellants are not entitled to damages for an alleged loss resulting from its later sale at a lower price.

Appellants claim $2,500.00 rental value of the premises for defendants’ two weeks of occupancy. Plaintiffs’ own appraiser fixed the rental value at $910.00 monthly, on which basis plaintiffs would be entitled to $455.00, at most, for this item. The trial court disallowed the claim completely upon finding that the parties intended defendants’ early occupancy was to be rent free. We find no error in this factual determination.

Appellants’ claim for depletion of inventory was dismissed by the trial court because of a lack of proof of such damages. Appellants submitted an inventory based solely on memory, many items thereon being disputed by defendants or claimed by defendants to have been unusable due to spoilage. We find no error in the disallowance of this item of damages.

Finally, the trial court rejected Appellants’ demand for $10,400.00 as the alleged cost of resuming operation of the restaurant after defendants vacated the premises. It suffices to say that the trial court found a total absence of proof to support the claim.

The judgment of the trial court is affirmed, all costs of this appeal to be paid by plaintiffs-appellants.

Affirmed.