text:
    Ernest YOUNGS v. Philip CHAMPAGNE and Heritage Insurance Company of America.
    No. 8784.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 10, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Burke & Ballard, Arthur A. Crais, Jr., New Orleans, for Hartford Acc. & Indem. Co., third party defendant-relator.
    Frank J. Varela, New Orleans, for defendants-third party plaintiffs-respondents, Philip Champagne and Heritage Ins. Co. of America.
    Before SAMUEL, MORIAL and BEER, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries sustained by the plaintiff in an accident involving four vehicles.

The petition alleges: The accident occurred at about 9:30 p. m. on a U.S. 90 overpass in an area in which there was no lighting and in which U.S. 90 is a four-lane highway heading generally east and west with a concrete median dividing it into two lanes in each direction. Plaintiff was operating his vehicle in the left or inside westbound lane and the other three vehicles were in the right or outside westbound lane. The first vehicle was stopped on the main travelled portion of the highway near the crest of the overpass, unattended and without warning signals. The second vehicle ran into the rear of the first, the third ran into the rear of the second and the rear end of the third vehicle swung out into the left or inside lane and struck the right front of plaintiff’s vehicle. The accident was caused by the concurring and solidary negligence of the drivers of the first three vehicles (on the basis of factual allegations not pertinent to the issue now before the court).

The petition names as defendants the drivers of the lirst three vehicles, the husband of the driver of the second, and the liability insurer of the third. The prayer is for an in solido judgment against all those defendants.

The driver of the third vehicle, Philip Champagne, and his liability insurer, Heritage Insurance Company of America, filed a third party demand against all other named defendants, against the liability insurer of the driver of the second vehicle, and against Hartford Accident & Indemnity Company, plaintiff’s uninsured motorist carrier, seeking contribution from the third party defendants in the event third party plaintiffs were found liable. The third party petition denies liability on the part of the third party plaintiffs, but alternatively alleges that, in the event of such liability, all drivers, except plaintiff, were concurrently negr ligent and Hartford was liable under the uninsured motorist coverage in plaintiff’s policy because the first driver was an uninsured motorist and the vehicle she was driving was an uninsured vehicle. We note that insofar as is shown by the record, no claim has been made against Hartford by plaintiff under his policy.

Hartford filed exceptions of no right or cause of action to the third party demand. After a hearing on those exceptions, there was judgment in favor of third party plaintiffs and against Hartford, denying the exceptions. On Hartford’s application, we granted a writ of certiorari for the purpose of determining the validity of that judgment and that determination is the only issue now before us.

The liability of an uninsured motorist carrier is based solely on the contract of insurance between the carrier and its insured, and the insured is the only party possessing the right to make a claim under his uninsured motorist provision. To hold otherwise would have the effect of converting the uninsured motorist provision into liability insurance covering the uninsured motorist. As stated by the Supreme Court in Booth v. Fireman's Fund Insurance Company, 253 La. 521, 218 So.2d 580, 583:

“We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists. The uninsured motorist provision closely resembles the policies of insurance which reimburse an insured for medical expenses or property damage resulting from an automobile accident. This action cannot be compared to that arising under our direct action statute by which suit may be brought directly against the insurer (in-demnifier) of the tort feasor without making the tort feasor a defendant. The uninsured motorist provision is not insurance or indemnification for the uninsured motorist, and the insurer does not stand in the shoes of the uninsured motorist who is the tort feasor.” (Emphasis ours).

Here, since the original plaintiff is the only party who may seek benefits from Hartford under the uninsured motorist coverage of his policy, Hartford is not obliged to contribute to plaintiff along with third party tort feasors, one or more of whom may be uninsured motorists. This result is dictated by LSA-R.S. 22:1406 D(4), which gives a carrier the right to recover payments made under the uninsured motorist provisions of its policy from the proceeds of any judgment “resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” If, as argued by third party plaintiffs, Hartford could be held for contribution among the third party defendants to satisfy a judgment in favor of the original plaintiff, Hartford would have a right to be reimbursed from the proceeds of that very judgment to the extent of the amount of its contribution.

For the reasons assigned, the judgment denying Hartford’s exceptions is reversed, and it is ordered that there be judgment in favor of third party defendant, Hartford Accident & Indemnity Company, and against third party plaintiffs, Philip Champagne and Heritage Insurance Company of America, maintaining the former’s exception of no right of action and dismissing the latters’ third party demand insofar as that demand is against Hartford Accident & Indemnity Company. The matter is remanded to the trial court for further proceedings in accordance with law. Costs in this court are to be paid by third party plaintiffs.

REVERSED AND REMANDED.

      . Shirley v. Aetna Casualty & Surety Company, La.App., 256 So.2d 462.


source: Caselaw Access Project

author: COVINGTON, Judge. LOTTINGER, Judge,

license: Public Domain

text:
    William G. WASCOM et al. v. AMERICAN INDEMNITY CORPORATION et al.
    No. 11342.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Writ Refused Oct. 28, 1977.

      Lewis 0. Unglesby, Baton Rouge, for William G. Wascom, et al., plaintiffs-appellants.
    Edward A. Griffis, Bogalusa, for American Indem. Corp., et al., defendants-appel-lees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment of the trial court sustaining the exceptions of no right and no cause of action filed by Allstate Insurance Company, the uninsured motorist insurer for the plaintiffs, insofar as and only insofar as the claim purported to be a claim for mental pain and anguish suffered by plaintiff, William G. Wascom, for the injuries to his wife, and as the claim of husband and wife purported to be for the wrongful death of twin fetuses subsequently stillborn. We affirm.

The exceptions were filed in a suit brought by the plaintiffs, William G. Was-com and Marilyn Sinagra Wascom, husband and wife, alleging that on February 25, 1976, Mrs. Wascom was injured in a collision with an automobile operated by defendant, Mary LaRock. Suit was filed against Mary LaRock, her liability insurer, American Indemnity Corporation, and Allstate Insurance Company, the plaintiffs’ uninsured motorist insurer.

In the original petition Mr. Wascom claimed damages for mental pain and anguish, although he did not allege bodily injury to himself or that he was in the Wascom automobile. Mrs. Wascom alleged personal injuries, mental and physical suffering and medical expenses due her as damages. A supplemental petition was filed by the plaintiffs for the deprivation of companionship, love and affection caused to each of them due to the wrongful death of their unborn twins, which were subsequently born dead. Defendant, American Indemnity, filed an answer denying liability.

Defendant, Allstate, filed exceptions of no right and no cause of action on the grounds that the children were born dead, and that there can be no recovery by a husband for mental pain and anguish resulting from injuries to his wife.

The law is clear that a wrongful death action can not be maintained for the death of a child never born alive. LSA-C.C. art. 28; Youman v. McConnell & McConnell, Inc., 7 La.App. 315 (2 Cir. 1927).

Article 28 of the Louisiana Civil Code provides:

“Children born dead are considered as if they had never been born or conceived.”

In Youman the court held that article 28 of the Civil Code precluded recovery for the death of a stillborn child; a child born dead is not considered as having had a legal personality distinct from its mother.

The Youman court observed:

“The civil law has always provided for the civil rights of the child en ventre sa mere, and while such rights are considered as never having existed when the child is born dead, because it is not regarded as a legal person until born alive, we think the provision of the Code should be read in this light, that is, that the child born dead is not considered as having had a legal personality distinct from its mother.”

In his “Reasons for Judgment” the trial judge considered, as we do, that LSA-C.C. art. 28 and the Youman case are controlling, and he remarked:

“. . .1 feel that when wrongful conduct of an individual deprives the expectant parent of this child, that they should have the right to recover. However, this Court does not make the law and feels constrained to rule as previously set forth.” .

We are in accord with the sentiments expressed by the trial judge. Nevertheless, we conclude, as the trial judge did, that the exception of no cause and no right of action must be maintained within the limits expressed by him.

We do not find that the husband unequivocally claimed such damages. In the original petition, Article 10 thereof states that he “suffered the following injuries (sic): a) loss of his two twin sons.” That was the end of that article of the petition. Article 11 then itemizes his damages as “a) Mental pain and anguish, past, present and future” and asked for a specific amount therefor. Again, despite the alphabetical “a)”, which usually indicates the first of a series, that was the end of said article. Then, in their supplemental and amending petition, Article 4 alleges that the accident caused the death of the twins, while 5 thereof states that “William G. Wascom, father of the twins, itemizes the damages he sustained as a result of the accident and death of the twins as follows: “a) Deprivation of the companionship, love, and affection of the children_$50,000.00; b) Grief, mental anguish and distress_$25,000.00; c) Medical_$313.00; Total_$75,313.00.”

The logical interpretation of the original and supplemental petition is that, in the original one Article 10 sets forth the nature of his loss, the unborn children, and Article 11 asks for a specific sum as damages for that loss. Likewise, in the supplemental petition, Article 4 states the alleged injury resulted in the children’s death, and Article 5 relates strictly to quantum. In brief, it is not clear that Mr. Wascom ever asked for damages for his wife’s injuries. However, since Allstate interjected that matter in its exception, and the trial judge felt constrained to treat the matter, we will do likewise.

The law is clear that a husband is not entitled to recover in tort for his mental pain and anguish brought about by his wife’s injuries, or the possibility of loss of an unborn child. No person may recover damages for mental anguish in a tort action resulting from injury to another person, which do not result in the latter’s death. See Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1 Cir. 1975), writ denied La., 318 So.2d 59. See Oppen-heim, The Survival of Tort Actions and the Action for Wrongful Death, 16 Tul.L.R. 386 (1942).

In Newman v. City of Baton Rouge, 260 So.2d 52 (La.App. 1 Cir. 1972), writ refused 261 La. 1064, 262 So.2d 43, the court held that a husband is not entitled to recover for mental anguish and worry arising out of his fear regarding the possibility of the loss of his unborn child because of an injury to his wife.

In so holding the court said:

“. . . (T)his Court has not approved the principle that damages may be awarded for mental pain and suffering occasioned by injury or threat of injury to another. Recently in Dudley v. State Farm Mutual Automobile Insurance Company, 255 So.2d 462 (La.App. 1st Cir. 1971), this Court denied damages to the father for mental pain and anguish occasioned by witnessing a serious accident resulting in injuries to his son. Plaintiff relies on Valence v. Louisiana Power and Light Company, 50 So.2d 847 (La.App. Orleans 1951), which allowed recovery to a father for mental anguish and worry over fear his wife’s unborn child had sustained an injury which might result in an abortion. Counsel’s attention is called to a later decision of the Fourth Circuit, i. e., Robertson v. Aetna Casualty and Surety Company, 232 So.2d 829 (La.App. 4th Cir. 1970), which declined to follow its previous ruling in the Valence case, choosing:
‘. . .to remain consistent with the accepted jurisprudence of this state, we adopt the uniform rule that one person cannot recover damages for mental anguish as a result of injuries to another where there is no breach of an independent ex contractu or ex delicto duty owed directly to the claimant as in Holland v. St. Paul Mercury Insurance Co., La.App., 135 So.2d 145 (1st. Cir. 1961).
(Robertson v. Aetna Casualty and Surety Company, 232 So.2d 829, 831).”

We conclude therefore that the trial judge correctly sustained the peremptory exception to the claim for mental pain and anguish suffered by plaintiff, William G. Wascom, for the injuries to his wife and as to both plaintiffs for the loss of the unborn fetuses.

For the foregoing reasons, the judgment of the trial court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.

LOTTINGER, J., dissents with written reasons.

LOTTINGER, Judge,

dissenting.

I agree with the majority’s analysis and conclusion that the husband-father is not entitled to recover in tort for his mental pain and anguish brought about by his wife’s injuries, or the possibility of loss of an unborn child, however, I dissent from that portion of the majority opinion that disallows a wrongful death action as to the unborn twins.

I agree with the view expressed in Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App. Orl. Cir. 1951) wherein the court said:

“We cannot be persuaded that, under no circumstances, should there be awarded damages to the parents of the unborn child if the foetus, while in its mother’s womb, has been so injured that it cannot be born alive. We are certain that the redactors of our code had no such purpose in mind in enacting Article 28.”

It is obvious to this writer that when LSA-C.C. arts. 28 & 29 are read together, that the redactors of our code were discussing inheritance rights of unborn children. It strains the imagination much less scientific knowledge, even at the time of the adoption of our code, to say that “children born dead are considered as if they had never been * * * conceived”, and thus no harm could be done to the fetus and no liability.

Therefore, I respectfully dissent in part and concur in part.

On Application For Rehearing.

Rehearing denied. Although we are not insensitive to the position of the plaintiffs, we feel that the placement of Civil Code Art. 28 in that portion of the Code entitled “Of Persons” means that the article has general application rather than being restricted to matters of inheritance only.

Also, by using the words “or conceived”, the legislature made a fetus, later stillborn, a “non-person” which never existed. Any plea for relief, for the benefit of those who may be affected by similar factual situations in the future, should be directed to the legislature. It is not the function of the courts to legislate.

LOTTINGER, J., dissents from the refusal to grant a rehearing.

      . Contra: Stone, Emotional Distress Occasioned by Another’s Peril, 48 Tul.L.Rev. 782 (1974).


author: LOTTINGER, Judge.

text:
    Robert BOHM, d/b/a Bob’s Construction v. CIT FINANCIAL SERVICES, INC.
    No. 11350.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Writ Refused Oct. 7, 1977.

      Bernard S. Smith, Covington, for plaintiff-appellee.
    Maurice J. Le Gardeur, Jr., Covington, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit for damages alleging the wrongful conversion and sale by defendant, CIT Financial Services, Inc. (CIT) of a truck owned by plaintiff, Robert Bohm doing business as Bob’s Construction (Bohm), but mortgaged to CIT. Plaintiff further alleges the wrongful conversion and sale to be an unfair and deceptive trade practice under LSA-R.S. 51:1405 entitling him to attorney fees, or that it was an unauthorized collection practice within the terms of the Louisiana Consumer Credit Law entitling him to attorney fees, refund of all finance charges and damages. Defendant contends that Bohm had voluntarily surrendered the truck by written release. Without finding either an unfair and deceptive trade practice or an unauthorized collection practice, the Trial Judge found the written release not to be valid and thus awarded plaintiff judgment in the amount of $1,896.95 plus interest, which included the value of the truck less the balance due on the loan plus general damages in the amount of $500.00. From this judgment, defendant has suspensively appealed. Plaintiff has answered the appeal seeking an increase in damages and a reversal of the Trial Court’s failure to find an unfair and deceptive trade act or practice and/or an unauthorized collection practice.

Succinctly, the record points out that plaintiff had borrowed a sum of money from defendant on August 16,1974, to purchase a 1972 Ford Ranchero truck and as security gave a chattel mortgage thereon. Plaintiff became delinquent in his payments, and on June 17, 1975, plaintiff discussed with a representative of defendant the delinquency at defendant’s office. Defendant contends that it was during this discussion that plaintiff signed what it terms a “voluntary surrender form”. The form in question measures 4V4 inches by 5V2 inches, is dated June 17, 1975, and contains the following language:

“TO C.I.T. FINANCIAL SERVICES CORPORATION:
I hereby acknowledge that simultaneously herewith, I have voluntarily turned over to you the vehicle described below:
“72 Ford_ Ranchero_
YEAR AND MAKE MODEL
“2A47F248757_ _
SERIAL NO. MOTOR NO.
“This shall not constitute a waiver on my part of the right of appraisement nor a waiver on your part of any rights you may have, including, without limitation, the right to establish a deficiency against me in the manner provided by law if you decide so to do.
/s/ Robert Bohm
Customer’s
Signature

Two witnesses for defendant testifies that the above form was signed by defendant after it was explained to him.

Plaintiff denies signing the release form, though he admits that he turned the truck over to defendant for a period of ten days to allow him time to cover the delinquent account. It is argued by plaintiff that he signed a blank slip of paper for defendant’s employee to take to plaintiff’s house to show his wife as his authority to turn the truck over to defendant. It was plaintiff’s testimony that he had used this procedure of his signature on a blank slip of paper in the past, whereas his wife said it was the first time. Further, plaintiff and his wife deny the signature on the printed form as plaintiff’s because he always signed his middle initial, and there was no middle initial on the form.

The truck was sold on June 18, 1975, to the father of defendant’s manager for an amount sufficient to pay out the account, though less than the value of the truck.

The Trial Judge in oral reasons for judgment concluded that there was no violation of the consumer protection law, that even if plaintiff had signed the surrender form, the form itself was not sufficient to constitute a surrender, and thus plaintiff never intended it as a surrender.

Defendant-appellant contends that the Trial Judge erred in finding that plaintiff never intended to relinquish all rights to his vehicle and in finding that plaintiff had carried the burden of proof.

Firstly, it must be noted that the Trial Judge did not decide factually whether plaintiff had or had not signed the printed surrender form, thus this Court is not confronted with a factual determination by the Trial Judge on this issue. We deem it important, however, to make this determination. From a complete review of the record, we find that the plaintiff did sign the voluntary surrender form.

Though the printed form presented to plaintiff for his signature is brief and perhaps could be more explicit, we do not find that it is so deficient as to disallow its use for a surrender of a vehicle. The form which has been quoted above very simply states that the described vehicle is being voluntarily turned over to CIT, that there will be an appraisal made, and that CIT can establish a deficiency against the debtor. We find that the Trial Judge was in error in ruling that the form in question did not constitute a surrender.

LSA-C.C. art. 1945 provides:

“Art. 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
“First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
“Second — That courts are bound to give legal effect to all such contracts according to the true intent of all the parties; “Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
“Fourth — That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was difference in this intent, there was no common consent and, consequently, no contract.”

If the agreement between the parties is clear and unambiguous, and will not lead to absurd consequences, the intention of the parties must be gathered from the writing itself. It is only where the agreement is unclear, ambiguous or will lead to absurd consequences that the court should go beyond the written agreement to gather the true intention. There is no question that the plaintiff in the instant case could read and write. We do not find the surrender form to be unclear, ambiguous or possibly leading to absurd consequences, thus, we hold that as between the parties it is controlling.

Any intention by plaintiff to the contrary, or any supposed agreements that the defendant would hold the vehicle for a certain number of days before selling it are of no moment. It is well settled, he who affixes his signature to an instrument is bound thereby.

The appellee in answering the appeal contends the Trial Judge erred in not finding an unfair trade practice within LSA-R.S. 51:1401 et seq. or a violation of Louisiana Consumer Credit Law — LSA-R.S. 9:3510 et seq. The basis of this argument is that the signature is a forgery and the repossession is illegal. Since we have concluded above that plaintiff signed the surrender, and the surrender form is valid, we find no merit in appellee’s argument.

In its answer to this suit, defendant reconvened for attorney fees under LSA-R.S. 51:1409, which was denied by the Trial Judge. In appealing, defendant-appellant does not argue against this portion of the Trial Court judgment, and thus we conclude that this portion of the Trial Court judgment is not being complained of by the defendant and is not before this Court.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and the petition of the plaintiff is dismissed with prejudice. All costs of this appeal to be paid by plaintiff-appellee.

REVERSED AND RENDERED.

      . LSA-R.S. 9:3510 et seq.


author: HOOD, Judge.

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Harry H. TURPIN, Defendant-Appellee.
    No. 5929.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Edwin R. Woodman, Jr., Johnie E. Branch, Jr., Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Thomas & Dunahoe, Natchitoches (Edwin Dunahoe, Natchitoches, of counsel) for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

This is an expropriation suit instituted under LSA-R.S. 48:441, et seq., by the State of Louisiana, through the Department of Highways, against Harry H. Turpin. It affects property in Natchitoches Parish.

The present suit was consolidated for trial with two other cases relating to property in the same area, and we are deciding all three of these companion suits on this date. See State of Louisiana, Through Department of Highways v. County Club Acres, Inc., La.App., 348 So.2d 138, and State of Louisiana, Through Department of Highways v. Natchitoches Country Club, La. App., 348 So.2d 141.

In the instant suit the Department of Highways has taken 8.217 acres in full ownership, and 0.138 acres for a drainage servitude, out of a 15.146 acre parent tract owned by defendant. Plaintiff deposited $3,883.00 in the Registry of the Court as its estimate of the value of the property taken. Defendant filed an answer alleging that he is entitled to an award of more than that amount for the value of the property taken and for severance damages.

The trial judge concluded that the value of the entire parent tract before the taking, including improvements, was $7,473.00. He rendered judgment awarding defendant the total sum of $6,343.50, less the amount deposited, being an award of $3,987.00 for the property taken, $210.00 for the fences taken, and $2,146.50 for severance damages. The Highway Department appealed. On this appeal plaintiff does not question the amount of the award made for the value of the property or improvements taken, or for severance damages to one very small tract of remaining land. It seeks, however, to have the award for severance damages to two other tracts of remaining property eliminated or reduced.

The parent tract owned by defendant before the taking, comprising 15.146 acres, was a rectangular shaped tract of land located about three-fourths of a mile west of the corporate limits of the City of Natchi-toches, and about one-fourth of a mile north of Louisiana Highway No. 1. Prior to the taking the parent tract was wooded property, most of which was covered with heavy underbrush. There were no improvements on it except for a few scattered fences. No utilities were available to that parent tract. The property had never been used for any purpose other than as woodsland and for pasturing cattle. The center of the tract was low, due to the fact that a natural drain ran across it from the northwest to the southeast parts of the property.

Before the taking the parent tract was totally landlocked, there being no access roads connecting it with Louisiana Highway No. 1 or any other public road. T. J. Stephens, an appraiser who testified in behalf of the defendant landowner, was under the impression that defendant owned a right or servitude which would enable him to build a road to the parent tract, connecting it with some other thoroughfare. H. Loren Willet, an appraiser for the Highway Department, was unable to find evidence of any such right of way, despite a specific search for it. Stephens was indefinite as to the existence of such a right of way, but he said with reference to it that “most of it was low on the highway, but it would have been suited, a road could have been built through it.” In any event, both appraisers valued the present tract at somewhat lower figures because there were no access roads or lanes connecting that property with any other public road.

The property taken in full ownership by plaintiff was an 8.217 acre tract, which comprised a strip of land approximately 350 feet wide running east and west almost through the center of the parent tract. That part of the property taken was to be used by plaintiff for the construction of a concrete by-pass highway, State Route 3110, around the City of Natchitoches. The evidence indicates that the owners of the property on either side of the new highway were to have free access to and from it.

The other property taken by plaintiff was a servitude on and affecting a 0.138 acre tract of land, located near the northwest corner of the parent tract. That servitude was to be used by plaintiff for constructing a drainage ditch or canal providing drainage for the new highway and for property on each side of that highway, in that vicinity-

After the taking, defendant was left with the following remainders of the parent tract: (1) 4.245 acres located on the south side of the new highway, having a frontage of 1,088.28 feet on that highway; (2) 2.481 acres on the north side of the new highway, having a frontage of slightly more than 600 feet on that highway; and (3) a triangular shaped tract of land in the extreme northwest corner of the parent tract containing 0.071 acres and having a frontage of 120 feet on the new highway by a depth of 57.68 feet on one side and 102.20 feet on the remaining side.

Appraiser Willet felt that the highest and best use of the parent tract before the taking was for agricultural purposes, with an ultimate change to suburban acreage after it is provided with better access. Appraiser Stephens submitted a report reciting that the parent tract was best suited for residential purposes. At the trial, however, he testified with reference to its highest and best use that, “on an overall basis, pasture, with some slight areas with a possibility of estate type homesites.”

As already noted, the only issues presented here relate to the award of severance damages to the two larger remaining tracts of land. With reference to severance damages, Willet testified that both of the above remaining tracts had “gained new highway frontage and resultant increase in market value,” and that the unit value of each of those remaining tracts “far exceeds” the before unit value. He concluded that no severance damages were sustained by the landowner.

Stephens testified that the 2.481 acre remaining tract of land, lying north of the new highway, was damaged to the extent of 50% of its original value, or $592.50, as a result of the taking. He explained at the trial that this remaining tract sustained severance damages because “it was cut off completely from the other,” and because of “the configuration of the land that’s left after the taking.” He offered no other explanation and no comparables to support his conclusion that this remaining tract of land, which now fronts on a new highway, had decreased in value by 50% as a result of the taking. With reference to the configuration of this remainder, it is apparent that Stephens was mistaken in assuming that it had a depth of only 20 feet on the west. The evidence, including his own official report of appraisal, shows that the property had a depth of at least 90 feet on the west.

Turning to the 4.245 acre remaining tract located south of the new highway, Stephens expressed the view that it had sustained severance damages of 75% of its original value, amounting to $1,520.00, as a result of the taking. In his report he assigned no reason for arriving at that conclusion, stating only that “there is an additional remaining area of 4.245 acres running the entire length of the property, measuring 983 feet in length, therefore lending damage to the small narrow strip of 75%.”

The construction of the new highway was completed before the trial. Photographs which were introduced in the evidence show that a new, wide concrete highway has been constructed over the property expropriated, with asphalt shoulders several feet wide on each side of the concrete slab. The elevation of defendant’s remaining property is higher than the surface of the highway on both the east and west sides of the remaining tracts, but the elevation of the center portion of a part of defendant’s remaining land is lower than the surface of the highway, due to the natural drain which crosses the property at that point. A new drainage ditch has been constructed crossing the west side of the property, however, which provides drainage for the highway and for the center section of the property. The construction of the highway thus has improved the low areas of the remaining property, making those areas available for other uses by filling them in.

We think the photographs and the testimony of Willet establish beyond question that the remaining property has been greatly enhanced in value by the construction of the new highway. The configuration of both the north and the south remainders is such that there is ample room on both sides of the highway for homesites. The new highway provides excellent access to and from all parts of those remaining tracts, where no access existed before. The evidence simply does not support a holding that defendant’s remaining property has been damaged or has suffered a reduction in value as a result of the taking.

Where the opinion of an expert as to severance damages is based on the percentage method of diminution in value, and is not based on any actual evidence of market value and cannot be justified upon any sound reason which would effect a decrease in market value, such testimony must be considered only as an individual and unsupported expression of opinion. State, Department of Highways v. Christy, 283 So.2d 533 (La.App. 1 Cir. 1973); Louisiana Power and Light Company v. Pipes, 188 So.2d 639 (La.App. 2 Cir. 1966).

The opinions as to severance damages expressed by Appraiser Stephens is unsupported by any other evidence, and thus cannot be justified upon any sound reason which could effect a decrease in market value. We thus reject the testimony of Stephens as to severance damages, and conclude that the trial judge erred in accepting his opinions as to that damage.

Our conclusion is that the two larger remaining tracts of land left to the defendant landowner, one of which is the 2.481 acre tract lying north of the new highway, and the other is the 4.245 acre tract lying south of the highway, did not sustain any decrease in value as a result of the taking, and that the trial judge erred in awarding defendant severance damages.

For the reasons assigned, the judgment of the trial court is amended, by reducing the amount of the award made to defendant Turpin from $6,343.50 to the sum of $4,197.00, with legal interest thereon from April 27, 1971, until paid, less a credit of $3,883.00 paid on April 27, 1971. In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellee.

AMENDED AND AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. COUNTRY CLUB ACRES, INC., Defendant-Appellee.
    No. 5930.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Edwin R. Woodman, Jr., Johnie E. Branch, Jr., Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Thomas & Dunahoe, Natchitoches (Edwin Dunahoe, Natchitoches, of counsel), for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

This is a highway expropriation suit instituted by the State of Louisiana, through the Department of Highways, against Country Club Acres, Inc. It was consolidated for trial with two other similar cases which we are deciding on this date. See State of Louisiana, through Department of Highways v. Turpin, La.App., 348 So.2d 135, and State of Louisiana, through Department of Highways v. Natchitoches Country Club, La.App., 348 So.2d 141.

In this suit plaintiff has expropriated .668 acres out of a 6.620-acre parent tract owned by defendant, leaving a remainder of 5.932 acres. It deposited $2,997.00 in the Registry of the Court as its estimate of the value of the property taken. Defendant answered, demanding that it be awarded additional sums.

The trial judge concluded that defendant was entitled to recover the following amounts:

Value of the property taken $ 3,500.00
Cost of new road 2,855.00
Cost of survey 300.00
Severance damage to Lot 6 225.00
Severance damage to Lot 7 500.00
Severance damage to Lot 8 500.00
Loss of additional property by the building of a new street 1,884.00
TOTAL $ 9,764.00

Judgment was rendered by the trial court in favor of defendant awarding it $9,764.00, less a credit for the amount deposited by plaintiff. The Department of Highways appealed. On this appeal, plaintiff does not contest the amount of the award made for the value of the property taken, but it contends that all other awards made by the trial court should be eliminated or reduced.

The parent tract owned by defendant, comprising 6.620 acres of land, was located about three-fourths of a mile west of the corporate limits of the City of Natchitoches, and at least one-fourth of a mile north of Louisiana Highway No. 1. That tract was subdivided into 12 lots prior to the taking, and the subdivision so formed constituted all of the property which was included in an oval shaped enclosure or loop formed by a gravelled street or road known as Chinqua-pin Drive. A similar gravelled road connected the south part of that loop with Louisiana Highway No. 1. All of the lots in the above subdivision fronted on Chinqua-pin Drive, and there thus was direct access from all lots in that subdivision to or from the above highway.

Lots 6 and 7 were the northernmost lots in the above subdivision, and they were the largest of the 12 lots in it. Lot 8 was located south of and adjacent to Lot 7. By this proceeding, plaintiff took parts of Lots 6, 7 and 8. It also took a part of Chinqua-pin Drive, the portion taken being the north elbow or section of the loop which encircled the entire subdivision.

The property taken was to be used for the construction of a new concrete highway, State Route 3110, forming a by-pass around the City of Natchitoches. The construction of that highway was completed before this case was tried, and the evidence shows that it is a two-lane, concrete highway, with wide asphalt shoulders on each side of it. There are no restrictions on access to and from that thoroughfare. The Highway Department constructed ramps at the intersections of its right of way with both the east and west prongs of Chinquapin Drive, so that motorists on that street could drive around the entire subdivision by travelling a small part of that distance on the new highway.

There were no improvements on Lots 6, 7 and 8 at the time of the taking. The subdivision involved here was created in 1963 and it was revised in 1968, but only one lot out of the entire subdivision has been sold, and that was Lot 1 in the extreme southern end of it. Utilities were provided for that lot, but they have not been provided for any of the other lots in the subdivision, although the evidence indicates that service can be provided for other lots in the subdivision if and when they are sold.

Two appraisers testified at the trial. H. Loren Willet, who appraised the property for the Highway Department, felt that no severance damages were sustained by defendant.

T. J. Stephens, who appraised the property for defendant, felt that the latter was entitled to recover severance and “cost to cure” damages, in addition to the value of the property taken. With reference to Lot 6, Stephens reasoned that since 7lh% of that lot had been taken, defendant was entitled to be compensated the value of the part taken, and in addition thereto he should be awarded 1lh% of the value of the lot, or $225.00, as severance damages because the size of Lot 6 had been diminished to that extent. The trial judge, accepting the opinion expressed by Stephens, awarded defendant $225.00 as severance damages to Lot 6. We conclude that such an award constitutes double compensation for the same loss, and that the trial judge erred in awarding the above amount as severance damages to that lot.

Substantially all of Lot 7 was taken, but a remainder of 3,571 square feet, or 0.08 of an acre, in the south part of it was left to defendant. Stephens felt that the small remaining part of that lot was useless, and that defendant should be awarded severance damages to that remainder in the amount of $496.37, that being the full value per square foot for the remainder of that lot. The trial judge awarded defendant $500.00 as severance damages to Lot 7.

The evidence shows that the small remainder of Lot 7 which was left to defendant was located adjacent to the remainder of Lot 8. Only a small part of Lot 8 was taken, and appraiser Willet felt that the small remainder of Lot 7 should be combined with the larger remainder of Lot 8 to make one large, usable and salable lot, “without any loss of unit value.” Willet pointed out that the combining of those two remainders into one would give the combined lot an area of 0.45 acres, which is larger than some of the undisturbed lots in that subdivision. The combined lot would have a substantial frontage on Chinquapin Drive and a frontage of more than 200 feet on the new highway. Willet believes that the square foot value of the combined lot would be equal to the square foot value of any other lot prior to the taking, and that there thus will be no severance damage to Lot 7. We agree with Willet that the small remainder of Lot 7 can be combined with the larger remainder of Lot 8, thus eliminating any severance damage to the former. In our opinion, the trial judge erred in awarding severance damages to the remainder of Lot 7.

Only 16.32% of Lot 8 was taken. Stephens felt that defendant was entitled to recover the full value of the part taken and that in addition thereto it should recover the same amount, or $489.60, representing 16.32% of the full value of the lot, as severance damages since the size of Lot 8 was reduced to that extent. The trial judge, obviously accepting Stephens’ opinion at least in substance, awarded defendant $500.00 as severance damages to Lot 8 we find that the award of $500.00 as severance damages to Lot 8 constitutes double compensation for the same loss, and that the trial court erred in awarding that amount as severance damages to Lot 8.

Stephens testified that as a result of the taking it would be necessary for defendant to construct another subdivision street immediately south of and adjacent to the new highway to connect the two prongs of Chin-quapin Drive. He explained that the new road or street was necessary so that Chin-quapin Drive would again make a complete loop around the subdivision. He estimated that it would cost $2,853.17 to construct the new street, and that 13,554 square feet of the remaining land, having a value of $1,884.00, would be required for it. He feels that defendant is entitled to be compensated those amounts as the “cost to cure” the damage it will sustain. The trial judge awarded defendants $2,855.00 as the cost of constructing a new subdivision street, and the additional sum of $1,884.00 as the value of the property needed for that street.

We disagree with Stephens that it will be necessary for defendant to construct a new subdivision street on its property. On the contrary, we agree with Willet that the construction of the new by-pass highway along the north boundary of the subdivision supplies the same access, convenience and service that another road or street running parallel and adjacent to it would provide. We find no merit to defendant’s argument that the new highway will not serve that purpose because the two accesses to that highway are “subject to being closed at any time and the allowance and existence of them was at the whim and pleasure of the Highway Department.” One answer to that argument, suggested by Willet, is that Chinquapin Drive also is a dedicated public thoroughfare and defendant’s use of that street may be at the whim of the Police Jury. Defendant thus is in substantially the same position now as it was before the taking, insofar as its use of the public road or street is concerned.

Our conclusion is that the construction of a new road or street in the subdivision is not necessary, and that the trial court erred in awarding defendant the cost of constructing such a road and the value of the property which would be required for it.

Since we have concluded that defendant will not have to incur the expense of constructing a new road, it is unnecessary for us to consider the legal question of whether “cost to cure” damages would be appropriate in this instance, even if a new subdivision road should be needed.

Finally, Stephens reported that “after the new street is built” it will be necessary for defendant to have its remaining lots resurveyed in order to rearrange the lot structure to conform to that street. He estimated that the cost of such a survey would be $300.00. The trial judge, accepting that testimony, awarded defendant $300.00 to cover the cost of such a survey. We have concluded that it will not be necessary for a new street to be constructed in the subdivision. Defendant thus is not entitled to the cost of making such a survey.

Our ultimate conclusion is that defendant is entitled to an award of $3,500.00 for the value of the property taken, but that it is not entitled to recover the severance and other damages awarded by the trial court.

For the reasons assigned, the judgment appealed from is amended by reducing the amount of the award made to defendant, Country Club Acres, Inc., from $9,764.00 to the sum of $3,500.00, with legal interest thereon from July 29,1971, until paid, less a credit of $2,997.00 paid on July 29,1971. In all other respects the judgment rendered by the trial court is affirmed. The costs of this appeal are assessed to defendant-appel-lee.

AMENDED AND AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. NATCHITOCHES COUNTRY CLUB, Defendant-Appellee.
    No. 5931.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Sept. 27, 1977.

      D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Edwin R. Woodman, Jr., Johnie E. Branch, Jr., Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Thomas & Dunahoe, Natchitoches (Edwin Dunahoe, Natchitoches, of counsel), for ap-pellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

This is a highway expropriation suit instituted by the State of Louisiana, through the Department of Highways, against the Natchitoches Country Club. It was consolidated for trial with two other cases which we are deciding on this date. See State of Louisiana, through Department of Highways v. Turpin, La.App., 348 So.2d 135, and State of Louisiana, through the Department of Highways v. Country Club Acres, Inc., La.App., 348 So.2d 138.

In this proceeding the Highway Department expropriated 2.098 acres, out of a 45.648-acre parent tract owned by defendant, for use in constructing a by-pass highway around the City of Natchitoches. The sum of $1,349.00 was deposited by plaintiff as its estimate of the value of the property taken. Defendant answered, alleging that the property taken “has a fair market value of $2,312.82,” that it has sustained severance damages in the amount of $780.00, and that defendant thus is entitled to an award in the total sum of $3,092.82.

The trial court rendered judgment awarding defendant $2,908.00, which included an award of $2,098.00 for the land taken and $810.00 for the fences on that land. He rejected defendant’s demand for severance damages. Plaintiff appealed.

The sole issue presented is whether the trial court erred in awarding the sum of $2,098.00 as the value of the property taken.

H. Loren Willet, an appraiser who testified for plaintiff, felt that the property taken had a value of $589.00 per acre, or a total value of $1,236.00, that the fences taken had a value of $211.00, and that defendant was entitled to be compensated the total sum of $1,447.00.

T. J. Stephens, who appraised the property for the defendant landowner, concluded that the land taken had a value of $716.31 per acre, or a total value of $1,502.82, that the fences taken were worth $810.00, and that defendant had sustained severance damages in the amount of $780.00 as a result of the taking. In his opinion, defendant was entitled to be compensated the aggregate sum of $3,092.82.

The trial court, apparently rejecting the opinions expressed by both experts, concluded that the land taken had a value of $1,000.00 per acre, or a total value of $2,098.00. He accepted Stephens’ opinion that the fences taken were worth $810.00, and he accepted Willet’s testimony that defendant sustained no severance damages as a result of the expropriation. He thereupon rendered judgment awarding defendant the aggregate sum of $2,908.00. The only reasons assigned by him for arriving at those figures were, “The court feels that this property is worth $1,000.00 per acre and awards $2,098.00 for the property taken and $810.00 for fencing taken, but denies any severance damages.” .

Our review of the record shows that Wil-let and Stephens were the only witnesses who testified at the trial or who submitted reports as to the value of the property taken. We find no documents or evidence of any kind in the record which tend to show that the property taken had a higher value than that expressed by defendant’s expert.

Defendant takes the position that the opinion expressed by each of the two experts who testified serves merely as a “guideline for the court to look to,” and that their testimony is “not binding on the court.” It argues that the facts presented with reference to the location and to the highest and best use of the land taken, “as well as the knowledge of the trial court of the value of land in the Natchitoches area,” are sufficient to support an award of $1,000.00 per acre for the land taken.

We agree with defendant that an opinion as to value expressed by an expert who testifies at a trial ordinarily is not binding on the court. We have reviewed the facts of this case carefully, however, and we fail to find any evidence which tends to show that the property taken is worth more than the amount alleged by defendant in its answer, or more than the highest value which was placed on it by any expert, and particularly by the appraiser who testified in behalf of defendant. We find no merit to defendant’s argument that the “knowledge of the trial court” as to the value of land in that area should govern, despite the fact that all of the evidence produced at the trial, including the opinions of expert appraisers, establishes that the property is worth substantially less than the amount at which the trial judge appraises it.

The highest value placed on the subject property by any expert who testified at the trial is $716.31 per acre, or a total value of $1,502.82 for all of the land taken. We conclude that the trial judge erred in awarding defendant $1,000.00 per acre, or the total sum of $2,098.00, for the land expropriated. We will affirm the award of the additional sum of $810.00 for the fences taken. In our opinion, the maximum award which could be made under the evidence presented here, as the value of the land and fences taken, is $2,312.82.

No one questions that part of the district court judgment which rejects defendant’s demand for severance damages. It is unnecessary, therefore, for us to consider defendant’s original claim for such damages.

For the reasons herein set out, the judgment appealed from is amended by reducing the award made to defendant, Natchi-toches Country Club, from $2,908.00 to the sum of $2,312.82, with legal interest thereon from October 6, 1971, until paid, less a credit of $1,349.00 paid on October 6, 1971. In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellee.

AMENDED AND AFFIRMED.


text:
    Herman HARDY et al., Plaintiffs-Appellees, v. MAYOR AND BOARD OF ALDERMEN, CITY OF EUNICE, Louisiana, et al., Defendants-Appellants.
    No. 5947.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Pucheu & Pucheu, by Jacque B. Pucheu, Sr., Eunice, Tate & McManus, by Kearney Tate, Eunice, for defendants-appellants.
    Young & Burson, by I. Jackson Burson, Eunice, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

Mr. and Mrs. Herman Hardy, and several of their neighbors, instituted this action seeking to have an ordinance of the City of Eunice, which rezones a city lot, decreed to be invalid. The defendants are the Eunice Planning and Zoning Commission, the chairman of that commission, and the Mayor and Board of Aldermen of the City of Eunice. An intervention was filed by Frank Johnson, the present owner of the lot which the ordinance purports to rezone. Judgment was rendered by the trial court in favor of plaintiffs “nullifying and abrogating” the above ordinance. Defendants and interve-nor appealed.

A number of issues are presented, the principal ones being (1) whether the rezoning ordinance sought to be annulled is invalid as constituting illegal “spot” zoning, and (2) whether the governing authority of the City of Eunice acted arbitrarily or unreasonably in making that zoning change.

The only property which was rezoned by the ordinance which plaintiffs seek to annul is Lot 12 of Block 90, of the Fuselier and Lewis Addition to the City of Eunice (referred to herein simply as “Lot 12”). Block 90 of that addition is bounded on the north by Laurel Avenue (U.S. Highway 190), one of the principal thoroughfares which runs through the City of Eunice. Block 90 contains a total of 16 lots, eight of them being in the north half of the block and eight of them being in the south half of it. Lot 12 is located in the southeast corner of Block 90. It is a relatively small lot, having a frontage of approximately 142 feet on Cane Street, by a depth of about 47 feet.

The City of Eunice adopted zoning regulations originally in 1954, but a new comprehensive zoning ordinance, identified as Ordinance No. 6-71, was adopted by the Mayor and Board of Aldermen of that city on June 29, 1971. Under the 1971 comprehensive zoning ordinance, property located on each side of Laurel Avenue, to a depth of about 150 feet, was included in an area which is zoned as a B-2 (highway business) District. The north half of Block 90 of the above addition was included in that B-2 District. A large area, including several blocks located immediately south of and adjacent to the above B-2 District, was placed in an area which is designated as an R-2 (residence) District. The south half of Block 90, including Lot 12, was put in the above R-2 District.

The following plat, which we prepared, shows the location of Lot 12 with reference to the above B-2 and R-2 Districts, as those districts existed on June 29, 1971, under Ordinance No. 6-71.

ZONING MAP

EUNICE, LOUISIANA

On September 14, 1971, the Mayor and Board of Aldermen of the City of Eunice adopted Ordinance No. 11-71, which rezoned or changed Lot 12 from an R-2 (residence) District to a B-l (local shopping) District. After that ordinance was adopted, the north half of Block 90 remained in a B-2 (highway business) District. Lot 12 was in a B-l (local shopping) District, and the remainder of the south half of Block 90 was in an R-2 (residence) District.

On May 21,1976, Reginald M. Ball, President of Ball’s Fried Chicken, Inc., which corporation then owned Lot 12, submitted a letter to the Municipal Planning and Zoning Commission of the City of Eunice requesting that Lot 12 be rezoned or changed from an R-2 (residence) District to a B-2 (highway business) District. Actually, Lot 12 was in a B-l District when that letter was submitted, and the application thus was incorrect in representing that it was then in an R-2 (residence) District. Pursuant to that application, however, the zoning commission caused the required notice to be published in a local newspaper, stating that the requested zoning change would be considered at a hearing scheduled to be held on June 24, 1976. The notice included the statement: “Intended use: Lounge.” A hearing was held at the time shown in that notice, but no one appeared at that hearing to protest the application. The zoning commission thereupon recommended to the Mayor and Board of Aldermen of the City of Eunice that the request be granted.

At a meeting of the Mayor and Board of Aldermen of the City of Eunice, held on July 13, 1976, the recommendation of the zoning commission was considered, and the Mayor and Board of Aldermen on that date unanimously adopted an ordinance which provided that the subject property, Lot 12, be rezoned and changed “from R-2 to B-2.” No one appeared at the meeting of the Mayor and Board of Aldermen to protest or object to the recommended zoning change. Immediately after that zoning ordinance was adopted, Frank Johnson, the intervenor in this suit, purchased the property from Ball’s Fried Chicken, Inc., and he then moved a building on Lot 12 preparatory to opening a lounge at that location.

Under the provisions of the comprehensive zoning ordinance of the City of Eunice, property located in an R-2 (residence) District, or in a B-l (local shopping) District, cannot be used for the purpose of operating a “lounge” or a “nightclub.” Property located in a B-2 (highway business) District may be used for the operation of a lounge or a nightclub.

This suit was instituted on August 5, 1976. The principal reason which plaintiffs assign for objecting to the rezoning of Lot 12 is that they do not want that lot to be used for the operation of a lounge, bar or nightclub.

Frank Johnson intervened, alleging that he is the owner of the subject property and that he unites with defendants in resisting the claims of plaintiffs.

After trial, the trial judge concluded that the action of the Mayor and Board of Aldermen of the City of Eunice in rezoning Lot 12, changing it to a B-2 classification, amounted to a “reprehensible, illegal and unconstitutional attempted exercise of the police power,” that it constituted “spot” zoning in violation of Article 6, Section 17, of the Louisiana Constitution, and that the ordinance rezoning Lot 12, adopted on July 13,1976, thus is illegal and void. Judgment was rendered by the trial court “nullifying and abrogating” that ordinance. The appeal which is before us now was taken from that judgment.

Defendants and intervenor contend that the trial court erred in holding that the rezoning of Lot 12 constituted illegal spot zoning. They argue primarily that the Mayor and Board of Aldermen were not arbitrary or unreasonable in making this zoning change, and that the court should not substitute its judgment for that of the governing authority of the municipality as to the wisdom of that amendment. Alternatively, defendants and intervenor argue that plaintiffs are estopped from challenging the validity of the ordinance which changes the zoning classification of that lot.

The authority of the Mayor and Board of Aldermen of the City of Eunice to adopt and amend zoning regulations for that municipality is derived from the police power which is vested in that body. The procedures required for adopting and amending zoning regulations are set out in LSA-R.S. 33:4721, et seq.

Zoning ordinances adopted in accordance with the procedures set out in the enabling statutes are presumed to have been adopted by the municipal authorities for valid purposes. All such ordinances are presumed to be valid, and the burden is on the party attacking a zoning ordinance to overcome this presumption of validity. The court will uphold the ordinance unless it is clearly shown that the action of the governing authority was arbitrary or unreasonable, or that the action taken violated a provision of the constitution or of the enabling statutes. Doubtful cases will be decided in favor of the validity of the zoning law. Sears, Roebuck & Company v. City of Alexandria, 155 So.2d 776 (La.App. 3 Cir. 1963); Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974).

A court will not substitute its views for those of the municipal governing body as to the wisdom of or the need for a change in the zoning regulations, except when it appears that there has been an abuse of discretion or an excessive use of power. The exercise of its police power by a municipal governing authority in establishing or amending zoning regulations will not be upheld, if it is shown that there has been an abuse of discretion or the excessive use of power, or that the action taken was arbitrary or unreasonable, or that it bears no relation to the health, safety or general welfare of the public. Four States Realty Co., Inc. v. City of Baton Rouge, supra; Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1 Cir. 1966).

With these general rules in mind, we turn now to the specific issues presented in the instant suit.

Illegal Spot Zoning

The trial judge held that the rezoning of Lot 12 from a B-l to a B-2 classification constituted an arbitrary and unreasonable exercise of the police power of the governing body of the City of Eunice, that it amounted to “spot zoning,” and that the ordinance purporting to make that change was unconstitutional and invalid. In making that determination, the trial court relied largely on Four States Realty Co., supra, and Dufau v. Parish of Jefferson, 200 So.2d 335 (La.App. 4 Cir. 1967).

“Spot zoning” is the singling out of a small parcel of land for a use classification which is different from that of the surrounding area, usually for the benefit of the owner of that parcel, or for the benefit of the owner of some other property in that area, and to the detriment of other owners. To constitute spot zoning there must be a change in the zoning classification applicable only to a relatively small area, and that change must be out of harmony with the comprehensive zoning plan for the community as a whole. Sears, Roebuck & Company v. City of Alexandria, supra; 51 A.L. R.2d, Section 263, page 192; 101 C.J.S. Zoning § 34, page 741; 82 Am.Jur.2d, Zoning and Planning, Section 76, page 514.

In Four States Realty Co., supra, one of the cases relied on by the trial court, our Supreme Court said with reference to spot zoning that:

“ * * * However, rezoning on piecemeal or spot basis is highly suspect. Generally, property owners may rely upon the previous exercise of police power in zoning, expecting that changes in zoning will only be made so as to affect vested property interests when the change is required to assure the public welfare. A city purporting to act under its police powers cannot create in a large area of property zoned in one classification an island of one parcel of land relegated to another zoning classification when no rational reason exists for such a separate classification.”

In that case, Four States Realty Co., supra, the City Council of Baton Rouge adopted an ordinance rezoning three lots in the central business district of Baton Rouge from a C-5 (commercial) to a C-4 (highway commercial) classification. For many years those lots had been included in a large zoning district, C-5, which permitted many business enterprises, including the construction and operation of a bus station. Plaintiff bought those three lots for the purpose of using them for the operation of a bus station. After it acquired the subject lots, however, other property owners in that vicinity applied to the City Council to have those three lots changed to a C-4 (highway commercial) classification, which change would make it impractical, if not impossible, for the lots to be used for the intended purpose. No other property within an 18-square mile area around these three lots was zoned C-4, and the rezoning of those lots thus created a very small island in the large C-5 (commercial) District. The Supreme Court found that the purpose of the change of classification was to prevent plaintiff from establishing a bus station on the above lots, that the rezoning of those lots constituted spot zoning and was contrary to the long-term comprehensive zoning plan for the community, that the action of the City Council in rezoning those lots was “clearly arbitrary and capricious,” and that the ordinance thus was invalid.

In Dufau, supra, the other case relied on by the trial court, the Jefferson Parish Council adopted an ordinance in 1960 zoning an entire square, containing 32 lots, as “commercial” property. Six years later at least 13 of those lots were being used for commercial purposes. In 1966 the Parish Council adopted another ordinance changing the entire square from a “commercial” to a “residential” classification. The owners of lots which were not being used for commercial purposes sued to annul the 1966 ordinance on the ground that it was discriminatory. The reviewing court, affirming the trial court, found that the 1966 change in the zoning regulation rendered the plaintiffs’ property completely valueless and unsalable as residential sites, since it was surrounded by commercial property. The court held, therefore, that the ordinance making the change was invalid, as being unreasonable and discriminatory.

We do not feel that Four States Realty Co., or Dufau, both supra, are applicable here because of the material differences in the facts of the cases. In the instant suit, Lot 12 lies adjacent to a B-2 (highway business) District, and the amendment merely extends or enlarges that district. The change does not single out Lot 12 and give it a particular zoning classification different from that of the surrounding property. It does not create an “island” in a large commercial district. The ordinance merely changes the zoning classification of that lot to conform to the area which abuts it on the north. There is no showing that the change was made to discriminate against, or to favor, the owner of a particular parcel of property. And, there is nothing in the evidence to indicate that the value of any other property in that area will be decreased by the rezoning of Lot 12.

The issues presented in Sears, Roebuck & Company, supra, are similar to those which are before us here. In that case, the Commission Council of Alexandria adopted an ordinance changing the zoning classification of a small strip of land from “residential” to “commercial,” so that it could be used for a parking lot. The subject strip of land was located adjacent to an existing parking lot, zoned for commercial use, and the effect of the change was to permit the enlargement of the existing parking lot to include a small strip which formerly had been zoned for residential purposes. We held that the rezoning of that lot was not arbitrary, unreasonable or discriminatory, that it did not constitute “spot zoning,” and that the ordinance making that change was valid.

It is possible that Ordinance No. 11 — 71, adopted by the governing body of the City of Eunice on September 14, 1971, would have been vulnerable to a timely attack on the ground that it constituted spot zoning, since it changed Lot 12 from a residence classification to that of B-l (local shopping). There was no other property in that entire area which was classified B-l, and the September, 1971, change thus singled out Lot 12, giving it a classification different from that of the surrounding area, thus creating an island consisting of one parcel of land.

The ordinance which is under attack here, adopted on July 13,1976, changes the classification of Lot 12 so that it now conforms to the classification of an adjoining area. It no longer forms an island of one parcel of land in an area which is zoned for other uses. The judgment rendered by the trial court, if allowed to stand, would have the effect of returning Lot 12 to its former B-l classification, and allowing it to continue to be an island in a large area which is zoned for other uses.

We have concluded that the action taken by the Mayor and Board of Aldermen of the City of Eunice on July 13, 1976, changing Lot 12 to a B-2 classification, did not constitute illegal spot zoning. There is no merit to plaintiffs’ argument, therefore, that the ordinance making that change is invalid, at least on that ground.

Arbitrary Action by Governing Authority

Plaintiffs contend, alternatively, that the action of the governing authority of the City of Eunice in changing Lot 12 from a B-l to a B-2 zoning classification, on July 13, 1976, was arbitrary, unreasonable and discriminatory. They argue that there is no need for this change in the comprehensive zoning plan of the City of Eunice, that there is no “scarcity of saloons in Eunice,” that “the residents of the South Cane area have not traditionally enjoyed a wide choice of residential sites,” and that the ordinance being attacked here deprives them of “their small enclave of relative serenity” in that part of the city.

The evidence shows that a substantial part of Block 90 of the Fuselier and Lewis Addition to the City of Eunice has been, and is being, used for the operation of bars, lounges or nightclubs. For years, the eight lots which comprise the north half of that block have been in a B-2 zoning district, where those types of businesses are permitted to operate. Bars, lounges and nightclubs are located on all of the lots on the west side of Block 90, facing on East Street. A large nightclub, known as the Morocco, is located on Lot 1, and bars or lounges are located on Lots 2 and 3, despite the fact that those three lots are zoned R-2, and thus restricted for residential use. An establishment, known as the Tip Top Lounge, is located on the southeast corner of the intersection of North Street and East Street, just south of the Morocco nightclub. The evidence shows, in fact, that the strip of land which is located on the east side of East Street, facing on that street, and extending a substantial distance south from Laurel Avenue, is known as “The Front,” and that there are numerous bars, lounges and nightclubs in that area, although much of that property is zoned R-2, for residential use.

Lots 13, 14 and 15 are the only lots in Block 90 which are being used for residential purposes. Lot 16 is vacant. The testimony of the residents of that area indicate that none of the lots in that block are ideally suited for residential purposes, largely because of their close proximity of so many bars and nightclubs. Mrs. Herman Hardy, one of the original petitioners, testified that the residents in that area are regularly “subjected to noise,” to “obscene language,” to disrespect, and to “indecent exposure.” Melvin Hardy who lives almost a block east of Lot 12, testified that he frequently is subjected to loud noises, sometimes until 4:00 A.M., and to “cursing, turning around in your driveway, busting bottles,” and to “hollering.” The residences of those witnesses are located at a greater distance from “The Front” than is Lot 12 or any other lot in Block 90. We find it difficult to reconcile the evidence with plaintiffs’ argument that the changing of the zoning classification of Lot 12 will deprive plaintiffs of “their small enclave of relative serenity” in that part of town. The evidence does not convince us that the changing of Lot 12 to a B-2 classification will reduce the value of any of plaintiffs’ homes, or that it will detract from the usefulness or desirability of any of those properties for residential purposes.

It is appropriate to observe here that the comprehensive zoning ordinance adopted for the City of Eunice provides for the continuation of non-conforming uses of land and/or structures. The evidence does not show how long the bars, lounges and nightclubs now located along the east side of East Street have been in operation at those locations. We assume that all of those establishments were in existence when the zoning ordinance was adopted, and that the owners have the right under the ordinance to continue to use those parcels of land and structures for those purposes.

The establishment of zoning regulations is a legislative function, and in this instance that function was exercised by the governing body of the City of Eunice. The record does not show the reasons why that body changed the zoning classification of Lot 12, other than the fact that that action was recommended by the Municipal Planning and Zoning Commission and that no one objected to the proposed change. The evidence establishes other facts and circumstances, however, which tend to support defendants’ argument that the governing body of the city did not act arbitrarily in changing the zoning of Lot 12. The record shows, for instance, that eleven of the sixteen lots in Block 90 have been and are being used for “highway business” purposes, including the operation of bars and nightclubs. We cannot say that the Mayor and Board of Aldermen acted arbitrarily in allowing one of the five remaining lots to be used for the same purpose, especially since that lot lies adjacent to the “highway business” district.

Another circumstance which we have considered is that Lot 12 was given a B-l (local shopping) classification in 1971, and since that time the owner has been authorized to use that lot for many business purposes, although not for the operation of a nightclub. The establishing of a B-l (local shopping) District, comprised only of Lot 12, created an island of that parcel of land between an R-2 District and a B-2 District, and we do not believe that the zoning authority can be said to have acted arbitrarily or unreasonably in changing the classification of that lot again so that it would no longer be an island, but would be included in one of the two large adjoining districts.

After reviewing the record, we have decided that the trial judge erred in holding that the Mayor and Board of Aldermen of the City of Eunice were arbitrary or unreasonable, or that they engaged in the excessive use of power, in changing Lot 12 from a B-l to a B-2 classification.

Validity of Rezoning Petition

Plaintiffs contend that the application which was filed with the Municipal Planning and Zoning Commission to change the classification of Lot 12 was void ab initio, because of the failure of the applicant to submit a petition in accordance with the provisions of Section 13.01 of Ordinance No. 6-71 of the City of Eunice, which ordinance establishes a comprehensive zoning plan for that city.

Section 13.01 of the above ordinance provides that the Mayor and Board of Aider-men may amend or change the zoning regulations “on petition by property owners,” provided that the petition is signed and acknowledged by the owners or agents of “not less than 50 percent of the area of land in which a change of classification is requested.”

Plaintiffs argue primarily that the petition for a change in the classification of Lot 12 should have been signed by the owners of not less than 50 percent of the land “within the large R-2 area” which is located south of and adjacent to the subject lot. They argue, alternatively, that an analogy should be drawn between Section 13.01 of the above ordinance and LSA-R.S. 33:4725, and that through that analogy the “area of land” referred to in the ordinance should be interpreted to mean an area determined by lines drawn parallel to and 200 feet distant from the boundaries of the above R-2 District.

We think the requirement in Section 13.01 of the comprehensive zoning ordinance, to the effect that the petition for a change of classification must be signed by the owners of not less than 50 percent of the “area of land in which a change of classification is requested,” means that the petition must be signed by the owners of 50 percent of the land in the zoning district in which the property was located when the change was sought. In this instance, Lot 12 was in a district zoned and identified as a B-l (local shopping) District. It was the only parcel of land in that district, and that lot thus was the only “area of land” in which a change of classification was requested. Ball’s Fried Chicken, Inc., was the owner of Lot 12, and it thus was the owner of all of the property located in that B-l District. The petition seeking a change in the classification of that particular lot was signed in behalf of that corporation by its president. We find that the petition was signed by the owner of 100 percent of the area of land in which the change of classification was requested.

LSA-R.S. 33:4725 provides a procedure for protesting or objecting to a proposed change in a zoning classification. The petition therein described is one which must be filed by a property owner who protests against the change, and not by one who seeks the change of classification as in the instant suit. We find no basis for analogy between that statute and Section 13.01 of the above ordinance.

We thus find no merit to either of the above arguments made by plaintiffs. Our conclusion is that there has been a compliance with the provisions of Section 13.01 of the comprehensive zoning ordinance.

Conflicting Provisions of Zoning Ordinance

Plaintiffs contend that the change in the zoning classification of Lot 12 is invalid because it purports to authorize the use of that lot in ways which conflict with other provisions of the comprehensive zoning ordinance.

They point out that Section 8.03 of that ordinance requires that the site of a B-2 business must contain at least 5,000 square feet, and they argue that an area that large is not available on Lot 12 after eliminating the square footage occupied by or required for the existing buildings on that lot. Section 2.02 provides that no more than one main building and its customary accessory buildings shall be erected on one lot, and plaintiffs argue that that prevents the owner of Lot 12 from erecting any other buildings on the lot, since two buildings are already on it. Sections 4.01 and 4.06 require the allowance of “off-street loading spaces” for some commercial structures, and plaintiffs contend that it would be impossible for the owner of Lot 12 to construct any additional commercial building on the lot and still comply with the above section of the ordinance. Section 1.03 provides that no amendments to the zoning classification shall become effective until after an entry to that effect has been made on the Official Zoning Map, and it is argued that no entry showing a change of classification of Lot 12 has been made on that map.

All of the above provisions relate to the manner in which property may be used after its zoning classification has been determined. The fact that the owner cannot or may not comply with some of those requirements does not render the change in the classification of Lot 12 invalid. The interested parties may resort to other procedures in an effort to obtain relief if the owners allow the property to be used in a way which violates the zoning regulations.

We find no merit to plaintiffs’ argument that the action of the zoning authority in changing the classification of Lot 12 is unreasonable and invalid because of the cited provisions of the ordinance, even though the intervenor may have violated one or more of those provisions when he moved a building onto the subject lot.

Appointment of Board of Adjustment

Plaintiffs demand, among other things, that the judgment appealed from be reversed and that this case be remanded so that a Board of Adjustment can be appointed, and plaintiffs will be given the right to appeal to that board, all pursuant to the provisions of LSA-R.S. 33:4727 and Article 12 of the comprehensive zoning ordinance of the City of Eunice.

LSA-R.S. 33:4727 provides that a local legislative body may provide for the appointment of a Board of Adjustment to hear and decide appeals from an order or decision of “an administrative official” in the enforcement of LSA-R.S. 33:4721 et seq., or of any ordinance adopted pursuant thereto. Section 12 of the zoning ordinance creates a Board of Adjustment, pursuant to the above statutory provisions, and it empowers that board to consider and rule on appeals from orders or decisions of the Building Inspector, or any other administrative official, in the carrying out or enforcement of any provisions of the ordinance. The ordinance authorizes the Board of Adjustment to consider a few other matters, but we find no provision in the statutes or in the ordinance which empowers the Board of Adjustment to consider or to rule on the validity of a change in the .classification of property under the zoning ordinance.

In our opinion, there is no merit to plaintiffs’ argument that they have the right to appeal the issue presented here to a Board of Adjustment.

Conclusion

Our conclusion is that the action taken by the governing authority of the City of Eunice on July 13, 1976, changing Lot 12 to a B-2 (highway business) zoning classification, is valid. The trial court erred, therefore, in decreeing the ordinance which effected that change to be invalid.

The judgment appealed from is reversed, and judgment is hereby rendered in favor of defendants and intervenor, and against plaintiffs, rejecting plaintiffs’ demands and dismissing this suit. All costs of the suit and of this appeal are assessed to plaintiffs-appellees.

REVERSED AND RENDERED.


author: HEARD, Judge. WATSON, Judge,

text:
    AVOYELLES TRUST & SAVINGS BANK, Plaintiff-Appellant, v. The ESTATE of Marvin N. LILIEDAHL through Jo Ann Lanell Cooley Liliedahl, Administratrix, et al., Defendants-Appellees.
    No. 5972.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 28, 1977.

      McCollister, Belcher, McCleary, Fazio, Mixon, Holliday & Jones by Donna D. Fraiche, Baton Rouge, James N. Lee, Bunk-ie, for plaintiff-appellant.
    Harold J. Brouillette, Marksville, One-bane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph Onebane, Lafayette, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

This case concerns the effect and enforceability of a corporate stock restriction included in the Articles of Incorporation and imprinted on a stock certificate representing 5,000 shares of Liliedahl & Mitchel, Inc. stock which were pledged to secure two promissory notes issued by the president-stockholder of the corporation as evidence of his individual indebtedness to Avoyelles Trust & Savings Bank, appellant herein. The debts evidenced by the promissory notes described as follows:

1. Promissory note dated November 16, 1975, executed by Marvin N. Liliedahl in favor of Avoyelles Trust & Savings Bank in the original amount of $43,-500.00, bearing interest at the rate of eight (8%) percent per annum from date until paid plus twenty-five (25%) percent attorney’s fees on which there was allegedly an unpaid principal balance as of the date of the filing of this action of $22,125.27, plus eight (8%) percent interest from March 10, 1976, and twenty-five (25%) percent attorney’s fees and,
2. Promissory note dated April 4, 1975, executed by Marvin N. Liliedahl in favor of Avoyelles Trust & Savings Bank in the original amount of $50,000.00, bearing interest at the rate of ten (10%) percent per annum from date until paid plus twenty-five (25%) percent attorney’s fees, said note being allegedly due in the full amount of the principal, interest and attorney’s fees at the time of the filing of this action.

The appellant-bank, as plaintiff, filed suit on July 14, 1976, in the Twelfth Judicial District Court in and for the Parish of Avoyelles, Louisiana, against the Estate of Marvin N. Liliedahl.

Pursuant to a money judgment rendered August 10,1976, in which the Twelfth Judicial District Court recognized a pledge of the above mentioned shares of stock, a writ of fieri facias was issued by the Twelfth Judicial District Court, Parish of Avoyelles, Louisiana, on October 28, 1976, directed against the Estate of Marvin N. Liliedahl, ordering the Sheriff of Avoyelles Parish to seize and sell the following described property.

“Five thousand (5,000) shares of Liliedahl & Mitchel, Inc. common stock represented by Certificate No. 1, dated April 1, 1971, issued in the name of Marvin Nils Lilie-dahl.”

Advertisement of a judicial sale of said property appeared in the November 25, 1976 issue of the Weekly News, the official journal of Avoyelles Parish, giving public notice that the sale of said property was scheduled for Wednesday, December 8, 1976, at the front door of the Avoyelles Parish Courthouse.

Subsequent to the publishing of the above described notice, but prior to the sale of said stock, a petition of intervention was filed by Mr. Roland Mitchel, individually, and as President of Liliedahl & Mitchel, Inc., appellees herein, seeking a temporary restraining order and preliminary and permanent injunction to enjoin the Sheriff of Avoyelles Parish from conducting the judicial sale or from otherwise disposing of the above described stock.

The suit to enjoin, as prayed for in the petition for intervention, was heard December 14, 1976. The evidence presented included affidavits, exhibits, and stipulations of counsel as well as legal memoranda. No testimony was heard.

The basis for the injunction prayed for by intervenor-appellee was that the above mentioned stock certificate seized under writ of fieri facias and Article VIII of the Articles of Incorporation of Liliedahl & Mitchel, Inc. bore the following restriction:

“No shareholder shall be permitted to sell his stock until he shall have first given written notice to the corporation of his intention to sell the same, stating in such notice the number of shares he or they desire to sell and transfer, the bona fide price at which he or they propose to transfer the same and the name of the person to whom the same is to be sold and transferred. The corporation shall then have an option for a period of thirty (30) days after the notice has been given to purchase the stock so offered for sale at the price stated in the notice. If the corporation desires to accept this option, it must agree to purchase all of the stock offered for sale and it must signify its acceptance in writing to the stockholder who declares to sell the stock. The giving of and the acceptance of the option by the corporation shall be by means of registered mail. The beginning of the thirty (30) day period shall commence at the hour and minute of the date the registered letter of notice is posted and shall expire seven hundred twenty (720) hours from the time of posting. In the event the corporation fails to exercise its option to purchase in the manner herein-above set forth then in such event the other stockholders shall be notified in like manner as hereinabove provided for notice to the corporation and the other shareholders shall then have the right of purchasing at said price the stock desired to be sold in the proportion that the amount of stock owned by each in this corporation bears to the total issued stock and shall notify by registered mail the shareholder so desiring to sell of their intention to purchase within ten (10) days of receiving notice of said intended sale and transfer. In the event any stockholder or stockholders do not express their desire to purchase said offered stock, then the other stockholders or stockholder may exercise said privilege in the manner last above herein set forth. The provisions of this paragraph shall not apply to any sale or other transfer from a stockholder to the following relatives: ascendants and descendants, brothers, sisters, husbands and wives. This article shall be printed on all stock certificates issued by this corporation and the provisions of the same may be waived in writing by all of the shareholders of this corporation.”

On December 16,1976, the Opinion of the Court on Application for Preliminary Injunction was rendered in favor of interve-nors-appellees. Judgment was stipulated to apply as to the permanent injunction as well, and the same was signed January 4, 1977. From this judgment, the plaintiff-appellant brought the present appeal.

Appellant contends:

A. That the stock certificate adjudged legally pledged to appellant can be judicially sold to satisfy debt.

1. The only sale or transfer prohibited by the stock restriction is a voluntary sale.

2. A judicial sale of stock to satisfy a pledge is not a voluntary sale as contemplated by the restriction.

3. The legal notice of the restriction extended only to potential purchasers, not to pledges of the stockholders.

B. That the philosophic basis for stock transfer restrictions relative to small business corporations is not a valid basis for the imposition of an injunction on an involuntary sheriff’s sale.

C. That a permanent injunction should not have issued in this case without a full evidentiary showing of irreparable injury.

D. In the alternative, should the sheriff not be allowed to continue with the sale, that the shareholder should be made to pay the debt to the appellant.

Louisiana has granted corporations the right to restrict the transfer of stock, provided that the restrictions placed on such transfers are plainly printed on the stock certificate, or sufficient information is given of the restriction on the certificate so as to alert third parties. See LSA-R.S. 12:57(F). These restrictions are to be strictly construed, as they unduly restrict the free-flow of commerce. Cimo v. National Motor Company of Louisiana, Inc., 237 So.2d 408 (La.App. 4th Cir. 1970); Phillips v. Newland, 166 So.2d 367 (La.App. 3rd Cir. 1964).

The case before the court presents a res nova issue in Louisiana: whether a restriction on the right to sell stock applies to the judicial sale of stock pledged to secure a note. The Courts of Louisiana have been presented with similar situations in the past, but never had to pass on the specific issue, as it was generally found that the restriction did not apply to the stock in question. For example, in Pitot v. Johnson, 33 La.Ann. 1286 (1881), the court found that a restriction prohibiting the sale of stock in a corporation while the stockholder was indebted to the corporation did not apply to the forced sale of pledged stock since the stock had been pledged before the stockholder indebted himself to the corporation. The court indicated that the sale might have been prohibited had the debt been incurred at the time of the pledge, but refused to consider the issue. See also New Orleans National Banking Association v. Wiltz, 10 F. 330 (E.Dist. of La. 1881), a case in equity, where the Federal Court refused to decide the issue as it could find no provision in Louisiana law authorizing the restriction.

Louisiana courts have held that stock restrictions are not applicable to transfers of stock to a wife at the dissolution of the community. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (La.1956). Appellant argues that the present situation is analogous to the situation in Messersmith, in that the transfer of stock is involuntary. However, Messersmith was merely a recognition that the wife had owned one-half of the stock from the date of purchase. In the present situation, the bank is not seeking to be recognized as owner of the stock, it is simply attempting to enforce a right of sale under the laws of pledge.

Appellant points out that other jurisdictions have held that stock restrictions are only applicable to voluntary transfers, McDonald v. Farley & Loetscher Mfg. Co., 226 Iowa 53, 283 N.W.2d 261 (1930); others have carved out specific exceptions to the restrictions for example, passage of title by succession, Taylor’s Administrator v. Taylor, 301 S.W.2d 579 (Ky.Sup.Ct.1957); restrictions are not applicable to forced or judicial sales, Dobry v. Dobry, 262 P.2d 691 (Okl.Sup.Ct.1953); restrictions not applicable in sale of stock at bankruptcy, Re Trilling and Montague, 140 F.Supp. 260 (E.D.Pa. 1956). The reasoning of the court in the last case was that the restriction was present to allow shareholders to protect themselves from an unwelcome purchaser and since the sale of the stock had to be advertised, the stockholders could protect themselves by becoming the highest bidder.

In a case that is on all fours with the present case, the New York Court held that the restriction did apply to a sale under a pledge agreement, and that the stock had to first be offered to the corporation before a judicial sale could be held. Estate Funds v. Burton-Fifth Ave. Corp., Sup., Ill N.Y.S.2d 596 (1952). The Florida Supreme Court in Weissman v. Lincoln Corporation, 76 So.2d 478 (Fla.1954), held that the remedy in a similar situation was for the stockholders to pay the amount of the debt. (The restriction in Weissman included prohibition of pledge, as well as sale of stock.)

It can be argued that the corporation could have prevented the present situation by forbidding stockholders the right to pledge their shares. However, since restrictions of trade are not favored in law, it would perhaps be wise not to hold the corporation to such a duty.

The bank could also have foreseen such a situation when it accepted the pledge, and it was clearly warned of the prohibition by the warning on the certificates. It would seem that the New York Court in Estate Funds had the correct solution.

Appellant contends that at no time did the Intervenors demonstrate that irreparable harm would result because of the foreclosure of the pledged stock and the transfer by sheriff’s sale. The trial court found that the only stock which was ever issued by the corporation was the certificate pledged by Marvin Liliedahl for 5,000 shares and the certificate issued to interve-nor Roland Mitchel for 1,580 shares. The corporation obviously intended a closed unit or corporate entity between themselves, their heirs and spouses. C.C.P. Art. 3601 provides:

“An injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant. . . ."

The trial court obviously concluded that to protect the closed unit or corporate entity an injunction was necessary. A trial judge has broad discretion in granting an injunction. Picard v. Ghoplin, 306 So.2d 918 (La.App. 3rd Cir. 1975).

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are to be paid by appellant.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissenting:

This appeal raises the issue of whether the restriction against sale of corporate stock authorized by LSA-R.S. 12:57(F) applies to a judicial sale of stock pledged to secure payment of promissory notes. The deceased, Liliedahl, pledged corporate stock to the Avoyelles Trust & Savings Bank. The stock was subject to a restriction, printed on the certificate and contained in the articles of incorporation, requiring a shareholder to first offer his stock for sale to the corporation and other stockholders before selling it.

The bank filed suit against the succession of Liliedahl, obtained a monetary judgment, had a writ of fi.fa. issued and the sheriff of Avoyelles Parish proposed to sell the stock pursuant to advertisement.

Mitchel, another stockholder, acting individually and as president of the corporation, sought and obtained an injunction against the sale of the stock on the basis of the restriction and this appeal followed.

The majority affirms on the basis that the injunction was necessary to protect the corporation from invasion by an unknown or unfriendly stockholder. In effect, the majority holds that the restriction against transfer applies to judicial sales as well as to voluntary sales.

I disagree.

Restrictions on the transfer of stock are strictly construed, since they restrict the free flow of commerce. The Third Circuit has specifically recognized this rule in connection with stock carrying a similar restriction against sale without prior offer to the corporation or the other stockholders. Phillips v. Newland, 166 So.2d 357 (La.App. 3 Cir. 1964), writ refused. See also Cimo v. National Motor Club of Louisiana, Inc., 237 So.2d 408 (La.App. 4 Cir. 1970). If restrictions on transfers are strictly construed, such a restriction should not be extended to cover judicial sales as well as voluntary transfers. Defendants argue for a liberal interpretation of the restriction and plaintiff a strict interpretation. Under Phillips, plaintiff would prevail.

Other states have followed the rule that restrictions are not applicable to various non-voluntary transfers. The majority cites a number of cases which recognize the possibility of non-voluntary transfer.

If the stockholders had wished to prohibit a pledge of the stock and the legal consequences, such a provision should have been expressly included in the restriction. Absent a prohibition against pledge, the courts should not supply one.

No prejudice can result to the corporation or the other stockholders. They can protect themselves by bidding' in the stock. In other words, they have the right to purchase the stock at judicial sale just as they would under the restriction.

For these reasons, I respectfully dissent.