author: BEER, Judge. LEMMON, Judge

text:
    E. J. DUGAS v. William A. SUMMERS, III and Caliste Beard, Jr.
    No. 7663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Writ Refused Feb. 14, 1977.
    Thomas K. Regan, Crowley, for plaintiff-appellant.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for defendant-appellee.

      Before LEMMON, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Elton J. Dugas, a private investigator, brought this action (initially in proper person) against defendant-appellee, William Summers, III, an attorney, for the recovery of funds allegedly due. Thereafter, Dugas retained counsel who supplemented the original petition by joining defendant-appellee, Caliste Beard, Jr., also an attorney, and alleging an oral partnership agreement between Dugas and both attorneys. That supplemental petition also increased the amount prayed for. A second supplemental petition was filed to add another demand to those listed in the first supplemental petition, and further increased the amount of the claim. A third supplemental petition merely noted a computational error in the second supplemental petition and, accordingly, revised the amount of the prayer downward. Several exceptions were filed, adjudicated and dismissed, The case was heard on the merits on various dates, and judgment was rendered in favor of defendants Summers and Beard, and against petitioner Dugas, who, thereafter, perfected this devolutive appeal.

Dugas claims that he made an agreement with Summers and Beard whereby he (Du-gas) was to receive one-third of the attorneys’ fees in all cases referred to them by him. Beard and Summers deny that there was such an agreement and contend that Dugas performed “investigative services” for which he was fully paid.

Accordingly, the principal issues for our consideration are:

1. Does the record contain sufficient proof that such an agreement existed between the parties?

2. If so, is the agreement enforceable?

Dugas’ basic contention is this: A meeting took place in Lafayette, Louisiana, between the litigants, during which they then and there confected a fee-splitting referral agreement which resulted in various cases being referred by Dugas to Summers and Beard. These cases produced attorneys’ fees for Summers and Beard, who were to pay Dugas his agreed upon share of same. Their failure so to do resulted in this litigation.

The trial, lengthy and burdened with much repetitious testimony, commenced on January 28, 1974, and then adjourned to be reopened on February 7, 1974, May 19,1975 and June 30, 1975.

Dugas testified that although he is a licensed private investigator, the arrangement he confected with Summers and Beard was based upon an understanding that he would receive one-third of the attorneys’ fees on all the cases he referred to them. Dugas claims that the fee-splitting arrangement was consummated at a restaurant at Lafayette with Patrick Jones, William Summers, Caliste Beard, Roy Benoit and himself present at the meeting. A written contract was not confected because “they (Beard and Summers) never wanted to give me a contract to the agreement. They said it was illegal for them to give me a contract.” Dugas contends that he did very little — if any — investigation in connection with any of the referred cases and confirms that he entered into similar fee-splitting arrangements with other attorneys in which he performed no investigative services but referred the cases to the attorneys in return for one-third of the attorneys’ fee.

In describing the circumstances surrounding the taping of various telephone conversations between the litigants, Dugas testified that the taping commenced when he informed Beard that Summers was withholding certain monies acquired in settlements involving all three men and that, as a result, Beard went to Dugas’ house and called Summers on the phone, knowing that Dugas’ phone was rigged for recording. Dugas testified that he relied on the tapes because “ . . . any time you are dealing with some crooks, you have to find something to combat the situation.”

In response to cross examination, Dugas acknowledged that he had been previously arrested at various times and charged with aggravated rape, defamation, simple rape, criminal conspiracy to commit burglary and impersonation of a police officer.

The testimony of Mrs. Carolyn Hebert, Mr. Essie Joseph Guidry, Mrs. Virgie Gas-pard, Mr. Joseph A. Bonicard and Mrs. Maurice Savoie indicated little more than that Dugas was instrumental in referring them to Beard and/or Summers for the prosecution of various tort or compensation claims.

Scattered, but relatively unconfirmed references to threats against Dugas appeared in some of the testimony. For example, Linus J. Mier, a former employee of Dugas, testified that in January, 1974, he and Du-gas had planned to go to Jacob’s Restaurant in Lafayette for the purpose of attempting to record a conversation which was going to evidence a threat on Dugas’ life. Lanier Cherry corroborated the Mier testimony to the extent that he (Cherry) informed Dugas that Beard had expressed a desire to “waste” Dugas. Cherry seemingly qualified this startling testimony by stating “we were all joking and acting crazy, having a few drinks” when Beard allegedly made such a statement at the Purple Peacock Lounge. Although Dugas testified that such threats were made, he admits that he, in turn, threatened Beard because he (Beard) and Summers were “manipulating” not to pay him on one or more of the “referred” cases. Beard’s former partner, James Mouton, corroborates Beard’s testimony that threats were made by Dugas against Beard.

Roy Benoit partially corroborated Dugas’ allegation that some fee-splitting arrangement was discussed at the meeting in a restaurant in Lafayette although Mr. Be-noit remembered very little else about the discussion and was unsure if Dugas, Summers and Beard were “serious” about the agreement.

Summers and Beard deny the existence of any fee-splitting agreement with Dugas and contend that Dugas was employed — on occasions — as an investigator. Summers testified that the investigative fee agreements with Dugas varied with the cases. Even though Dugas brought some cases directly to him, Summers earnestly contends that there was no agreement other than that he (Dugas) was to be paid if he rendered investigatory services.

The testimony elicited at the trial indicated that Summers and Beard had various disagreements as to their own fee-splitting arrangement and, as a result, Beard eventually filed suit against Summers.

Much repetitious and generally indecisive testimony deals with the various cases which formed the common nucleus of the alleged Beard-Summers-Dugas relationship. The record indicates many instances of quarrelling between the examiner and the witness but little evidence of serious probative value.

Regarding the Lafayette meeting, Patrick Jones, an attorney who is a pilot, acknowledged that he flew Summers to Lafayette on April 30, 1969, for a meeting with Dugas and Beard and that some other person (presumably Roy Benoit) who had come to the restaurant with Dugas “went off and talked to someone else” during lunch. Jones denies that Roy Benoit was at the luncheon table, thus contradicting the testimony of Benoit as well as Dugas on this point. Jones further testified that he was at the luncheon table during the entire course of the meal and heard no fee-splitting agreement consummated between Du-gas on the one hand and Beard and Summers on the other. In fact, Jones contends that the discussions were relative to certain fee arrangements between Beard, Summers and himself.

Finally, James Mouton, attorney and former partner of Beard, testified that Dugas had approached him regarding a fee-splitting arrangement but that he rejected the proposal.

Certain cancelled checks were introduced into evidence allegedly supportive of the fee-splitting arrangement. In each instance, there was contravening testimony to explain the basis upon which the checks had been issued. For example, Summers testified that his check no. 296 payable to Dugas for $1,275 was not a split of a fee from a particular case but for “accumulative bills for investigative services that Mr. Dugas had performed prior to that time.”

The trial judge, after reviewing all of the evidence and hearing the testimony of all of the witnesses, concluded that Dugas was, in the vernacular, a professional “runner.” We believe that the record supports this finding by the able trial judge. But, further, our appraisal of the entire record of these unsavory proceedings leaves us with the belief that Summers and Beard knew that they were dealing with a “runner” and that such arrangements as were made with Dugas was not for investigative services to be performed on a case by case basis but did contemplate some method of compensation to Dugas in return for his referral of possible clients whose claims, when reduced to settlements or judgments, would produce fees to be distributed between the parties— regardless of whether or not any investigation had been performed.

Notwithstanding these views, we believe that this matter is ultimately governed by LSA-R.S. 37:213, which provides, in part, that:

“No person, partnership or corporation shall solicit employment for a legal practitioner.”

Dugas’ First Supplemental and Amended Petition avers:

“That your petitioner is a duly licensed and authorized investigator in the State of Louisiana, and for approximately the past two years was employed by defendants herein, at different times for the purpose of investigating certain civil cases; and in addition that a partnership was formed between plaintiff and defendant for the purpose of sharing fees on all cases referred to defendant by plaintiff herein on the basis of one-third (Vb) to each of them, which one-third (V3) share of plaintiff herein would include his investigation charges in their entirety.”

Even more compelling is the record itself which we believe supports a finding that Dugas’ principal activity was the referral of cases to (among others) Summers and Beard — not the performance of investigatory services. Dugas did only minimal investigatory work in but two cases out of nine cases which form the nucleus of his claim and his own testimony confirms fee-splitting arrangements with other attorneys not for investigative services, but for referring cases.

Besides constituting possible grounds for disbarment of the involved attorney and violating R.S. 37:212, et seq., a fee-splitting arrangement for “referrals” between attorney and layman is clearly against public policy.

Though Van Horn v. Vining, 133 So.2d 901 (La.App. 2nd Cir., 1961), deals with a claim for nursing services rendered by one knowingly not licensed to practice nursing in Louisiana as required by LSA-R.S. 37:961, the court’s conclusion is here appropriate:

“A fundamental principle of our law is that individuals cannot, by their agreements, derogate from the force of laws enacted for the preservation of the public order and good morals (LSA-C.C. Art. 11), and that whatever is done in contravention of a prohibitory law is null (LSA-C.C. Art. 12). Thus, as a general rule, all contracts or agreements which directly or indirectly involve, or have for their object, a violation of the law are illegal, and, generally, it is immaterial whether the thing forbidden is malum in se. or merely malum prohibitum. Such contracts or agreements are void in the sense of being enforceable. LSA-C.C. Arts. 1891, 1892, and 1895; 17 C.J.S. verbo ‘Contracts’ IX. Illegality, Secs. 189-191, pp. 544-545.”

Jary v. Emmett, 234 So.2d 530 (La.App.1970), writs ref. 256 La. 374, 236 So.2d 502 (1970), followed Van Horn and extended the above noted holding to an action premised on quantum meruit. The court found “no theoretical distinction” and concluded that: “Since the basis of quantum meruit is an implied contract to pay for services rendered, no recovery can be had where the contract implied is illegal.”

In Andrus v. Guillot, 160 So.2d 804 (La.App. 3rd Cir., 1964), a collection agency contracted with a plumber to collect an overdue account. Thereafter, as a result of the actions of his own attorney, the plumber collected the account and the collection agency sued for its “commission.” The trial court rendered judgment in favor of plaintiff, and defendant appealed. The appellate court reversed, finding the contract illegal and unenforceable. It held:

“In view of the decision in the Meunier case, supra,* and LSA-R.S. 37:212 et seq., we are of the opinion that the contractual rights which plaintiff seeks to enforce in the instant case are illegal and against public policy because the consideration therefor calls for plaintiff to engage in the practice of law, which he is not qualified to do under the laws of this State.” (*Meunier v. Bernich, La.App., 170 So. 567.)

Dugas’ acknowledged referral practices violated LSA-R.S. 37:212 et seq., and the record clearly supports the trial court’s factual finding that he was a “runner.” Although we believe that a fee-splitting referral arrangement did exist between Du-gas, Summers and Beard, we, nevertheless, conclude that to the extent it did exist, it was illegal, against public policy and — thus —unenforceable.

The predecessor to this court, speaking through Judge Janvier, has observed in language clearer than any that we might attempt that:

“No principle of law is better settled than that a party to an illegal contract or an illegal transaction cannot come into a court of law and ask it to carry out the illegal contract or to enforce rights arising out of the illegal transaction.” Bergeron v. Mumphrey, 38 So.2d 411 (Ct. of App., Orls., 1949).

Accordingly, the result reached by the trial court is, in all respects, correct and is, therefore, affirmed. Each party to the appeal is to bear his own costs.

AFFIRMED.

LEMMON, J., concurs.

LEMMON, Judge

(concurring).

Dugas’ petition failed to state a cause of action for which relief can be granted.

R.S. 37:213 provides that “(n)o person . shall solicit employment for a legal practitioner”. In stating his cause of action, Dugas alleged that he had solicited employment for lawyers in response to an offer for remuneration. Inasmuch as C.C. art. 1892 declares void a contract having an object which is forbidden by law, a contract based on an offer by a legal practitioner to pay remuneration for soliciting employment is void and unenforceable.

It is with some hesitation that I reach this result, which in effect allows a lawyer, who himself violates the law by offering remuneration to a runner, to then urge his own violation as a defense to a suit to collect the remuneration. Nevertheless, the runner himself is unclean in such a situation, particularly if the runner is aware that his solicitation and the lawyer’s payment therefor are both prohibited by law.

We cannot allow the use of the courts for enforcement of such contracts. When a lawyer offers a runner remuneration for soliciting employment and the runner accepts the offer by producing a client, the runner does so at the risk that he will not be paid for this illegal act and will have no recourse to the courts to enforce the contractual obligations.

      . It is not without grave concern that we affirm. The basis upon which appellees have escaped liability — on the facts found by us— does them no credit.
      The conclusion we are here obliged to reach should not be erroneously interpreted as in any way protective of lawyers who make use of runners and, thereafter, seek to avoid payment for that nefarious service. We abhore such practice and encourage the imposition of swift and meaningful sanctions calculated to result in their prompt and final abatement.


source: Caselaw Access Project

author: BOUTALL, Judge. REDMANN, Judge

license: Public Domain

text:
    R. Randolph RICHMOND, Jr. v. ZAPATA DEVELOPMENT CORPORATION.
    No. 7667.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Granted Feb. 11, 1977.
    J. Harrison Henderson, III, William J. Guste, III, Guste, Barnett & Shushan, New Orleans, for R. Randolph Richmond, Jr., plaintiff-appellant.
    Herschel L. Abbott, Jr., and Edward B. Poitevent, II, Jones, Walker, Waechter, Poi-tevent, Carrere & Denegre, New Orleans, for Zapata Development Corp., defendant-appellee.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment that granted the defendant’s motion for summary judgment and dismissed plaintiff’s suit.

On October 2,1974, plaintiff, R. Randolph Richmond, filed suit against Zapata Development Corporation (Zapata) alleging that Zapata sold plaintiff 640 acres of land with all legal warranties on June 9, 1972. Plaintiff alleges further that the act of sale made no mention of a certain oil, gas, and mineral lease granted by Gay Union Corporation to Gulf Refining Corporation, dated August 11, 1930, and properly recorded in Iberville Parish, situs of the subject property. Plaintiff’s petition states that 360 of the 640 acres sold are subject to extensive mineral recovery operations and thus rendered useless for development as a result of the said Gay-Gulf Refining lease. Plaintiff prays for $120,000 diminution in sale price of $160,000, based upon Zapata’s express warranty to plaintiff contained in the act of sale.

Defendant raised the peremptory exception of prescription, claiming that the plaintiff’s petition is one of redhibition, seeking quanti minoris, and subject to one year’s liberative prescription.

Plaintiff then amended his petition to raise the amount of damage allegedly sustained under the defendant’s breach of warranty. Subsequently, defendant filed a motion for summary judgment on May 1, 1975, simultaneously introducing exhibits “A”, the act of sale, “B” the act of sale of all oil, gas, and mineral interests in the subject property from Southdown, Inc., to Pelto Oil Co., and “C”, the recorded lease of mineral exploration rights granted from Gay Union to Gulf Refining Corporation.

From the date of filing of the motion for summary judgment until the date of the signing of the judgment granting summary judgment, a period of six months, plaintiff filed no affidavits opposing the motion, but filed only a reply memorandum to the motion. On November 12, 1975, summary judgment was granted and signed.

On November 18, 1975, plaintiff filed a motion for a new trial. In connection, therewith, on December 3, 1975 he filed an affidavit reciting and enlarging the allegations contained in the original petition. The judge rejected the affidavit, but treated it as a proffer. Two more proffers, an affidavit and photographs, were filed in the record, apparently having been offered on the new trial hearing, December 12. The motion for new trial was denied.

On appeal, plaintiff Richmond argues that the trial court erred in granting summary judgment because there was presented to the court a genuine issue of fact, and because the trial court erroneously applied the law.

The court’s reasons for judgment are quite clear. The court held that all of the structures on the subject property were quite visible, the Gay-Gulf lease was not disclosed in the act of sale, and these facts are not in dispute. Therefore, the court had to deal only with issues of law, per Code of Civil Procedure articles 966 and 967. The court found that Zapata did not warrant the 640 acres to be free and clear of mineral activities and development because the buyer was aware that the minerals have been sold as per paragraph (k) of the act of sale. The plaintiff buyer should have been aware of extensive oil activity, as witness the numerous paragraphs of the act of sale which specified rights-of-way, leases, etc., that accompany oil production. The court held “that being cognizant of the previous sale of all minerals and there was no guaranty of any minerals, there was no warranty of minerals, and there was no warranty with any activity dealing with minerals as stated above.”

As to the issue of appropriateness of summary judgment in this case, this court finds no error on the part of the lower court, in light of the fact that the plaintiff failed to file counter affidavits during the six month period that the motion was pending. Article 967 of the Code of Civil Procedure states:

“. . .an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”
* * * * * *

As the trial judge stated in his reasons for judgment, there is no appearance of any issue of material fact. The relevant facts are uncontested and plaintiff failed to file affidavits establishing any genuine issue, therefore summary judgment was appropriate. Bally Case & Cooler v. I. A. Kramer Service, Inc., La.App., 252 So.2d 559 (1971). The affidavit filed by plaintiff, which does not establish any relevant genuine issue of fact, comes too late.

Having now decided that there is no genuine issue of fact, we now pass to a consideration of the issue of the correctness of the application of the law under article 966. Plaintiff-appellant Richmond contends that a buyer is under no duty to inspect the public records and investigate title before purchasing real property. Young v. Sartor, 152 La. 1064, 95 So. 223 (1922).

The precise question is whether the inscriptions bearing against the property contained in the act of sale were sufficient to incite inquiry in the purchaser as to mineral recovery activity on the subject land.

We hold that the recitations were sufficient to cause the plaintiff to investigate his title and the public records. The listed inscriptions (see footnote 2) would put a reasonable man on notice that there was considerable mineral recovery activity taking place on the subject land. The jurisprudence is fairly replete with cases holding

that there is no duty of the buyer to investigate his title, but where certain facts known to the buyer constitute a warning that further inquiry is needed and such facts are sufficient to excite inquiry, a duty devolves upon him to investigate his title before purchasing. Juneau v. Laborde, 219 La. 921, 54 So.2d 325 (1951). Had the plaintiff checked the public records, he would have discovered the Gay-Gulf lease. Any view of the property would have disclosed its physical condition.

Accordingly, we affirm the judgment of the trial court in granting summary judgment.

AFFIRMED.

REDMANN, J., concurs.

REDMANN, Judge

(concurring).

The buyer of land without minerals can ordinarily not object because the sale fails to recite a mineral lease (by one third party to another). Plaintiff buyer’s complaint is not that a third party is taking the minerals, but that a third party is occupying (much of) the surface, to the exclusion of plaintiff. But because plaintiff does not allege that the third party occupies under any title (the mineral lease does not purport to lease the surface), the remedy is eviction of that third-party occupant. That third party can only prevent eviction by some showing of title not in evidence in our record: and if that showing is made then plaintiff can sue for rescission or other appropriate remedy for defendant vendor’s breach of warranty.

      . Because of our conclusion as to the appropriateness of the summary judgment and application of the law, we pretermit discussion of the issue of prescription, other than to refer the reader to Pursell v. Kelly, La.App., 139 So.2d 12 (1962).

      . Pertinent inscriptions bearing against the property contained in the act of sale were in summary:
      a) Right of way agreement, Gay Union to Dow Chemical.
      b) Agreement between Gay Union and Gulf Utilities granting right to extend existing electrical lines.
      c) Agreement from Gay Union to Humble Pipe Line Company.
      d) Pipeline right-of-way, Gay Union to Humble Gas Transmission Company.
      e) Right-of-way, Gay Union to Interstate Natural Gas Company.
      f) Agreement, Gay Union to Standard Oil of Louisiana.
      g) Right-of-way, Gay Union to Standard Oil of Texas.
      h) Right-of-way, Gay Union to Temple Har-grove and Freeport Oil Company.
      * * * * * *
      j) Oil, gas and mineral lease, Gay Union to Davis Oil Company.
      k) Sale of all minerals by Southdown Lands, Inc. to Pelto Oil Company.
      l) Right-of way servitude, Zapata to Humble Pipe Line Company.
      The parties waived the production of mortgage, conveyance and tax researches.


author: STOULIG, Judge.

text:
    George RENAUDIN et al. v. ZAPATA DEVELOPMENT CORPORATION.
    No. 7669.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Refused Feb. 9, 1977.
    Barry F. Viosca and Allen C. Hope, Jr., New Orleans, for plaintiffs-appellees.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment ordering defendant, Zapata Development Corporation, to refund a $50,000 deposit made by plaintiffs, George Renaudin, William S. Re-naudin and Gerald G. Pfister, in connection with their negotiations to purchase a 785-acre tract of land in Terrebonne Parish. At the outset, the prospective seller was aware plaintiffs were attempting to acquire the site for construction of a hospital complex or other commercial buildings. The sale was never concluded because Zapata’s ownership was burdened with mineral servi-tudes whose holders refused to execute waivers that would give plaintiffs unrestricted use of the surface rights to the land should they buy it. Zapata refused to refund the $50,000 deposit, contending it was consideration for a 90-day option that plaintiffs failed to exercise; or alternatively, it was earnest money if the court determined that there was a contract to sell, which sum plaintiffs forfeited by their refusal to accept title. Plaintiffs contend it was an earnest money deposit to be applied against the purchase price.

After reviewing the writings exchanged between the litigants relating to the proposed transfer and the parol evidence offered to explain them, the trial judge concluded there was no contract because there was no meeting of the minds. He held the defendant’s retainment of the deposit resulted in an unjust enrichment. In response to defendant’s appeal from this result, plaintiffs answered seeking a return of double the deposit plus out-of-pocket damages they incurred on the theory that the contract to sell was completed and defendant failed to tender merchantable title within the time prescribed in the contract.

Of the specification of errors assigned, appellant’s complaint that the trial court erred in admitting parol evidence is an appropriate starting point. C.C. art. 2276 prohibits the introduction of parol evidence to add to or contradict a written agreement but does not forbid the admission .of testimony to clarify ambiguous writings and ascertain the true intent of the contracting parties. This was pointed out by the Supreme Court in Bank of Napoleonville v. Knobloch & Rainold in language appropriate to the case before us:

“When persons commit their agreements to writing, their intentions and purposes cannot, be sought outside the four corners of the written instrument. Where the terms of the agreement, however, are so ambiguous as not to be susceptible of intelligent construction, parol evidence may be admitted to make clear that which is obscure * * 80 So. at 216.

Appellant would limit our inquiry to one of a series of documents exchanged by these parties in an attempt to reach a meeting of the minds. If we were to isolate the language they cite from the balance of the written exchanges, it might support defendant’s claim the $50,000 was paid and accepted for a 90-day option in plaintiffs’ favor. However, when viewed as a whole, they simply indicate the parties unsuccessfully negotiated to enter into a valid buy-sell agreement. Couched in obscure terms, the ambiguities in the writings that predate January 1974 clearly exempt this case from the C.C. art. 2276 parol evidence ban.

Before describing the portions of the documents relevant to this case and the explanatory facts, we note that plaintiffs had bought property from defendant twice before. On both occasions surface rights were cleared before plaintiffs took title. In fact the sales would not have been confected without a grant of unrestricted surface rights to the vendees because American General Insurance Company of Houston, Texas, the lending agency with which plaintiffs financed their purchases, made granting of the loans contingent on the acquisition of unrestricted surface rights.

In point of time the first document evidencing an intent of Zapata to sell the 785-acre tract was an exclusive listing agreement captioned an “Authorization of Sale”, dated January 19, 1973, in favor of “Allen Samuels, Inc., and/or Eric Snyder” that was to remain effective until May 30, 1973. The sale price specified was $2,500,-000 net to seller. The listing agreement required:

“Purchaser shall deposit $50,000.00 as earnest money to be applied to the purchase price at the act of sale which shall be within ninety (90) days of the signing of the purchase agreement.”

This document expressly excluded sale of the minerals.

By letter of May 24, 1973, Zapata agreed to extend the authorization (listing agreement) to August 31, 1973. A handwritten notation indicates Zapata authorized the brokers to reduce the purchase price to $2,250,000 and reaffirmed all other conditions in the January agreement.

Zapata rests its right to retain the $50,-000 as consideration for an option based upon its letter of September 14, 1973 addressed to the brokers, which we quote:

“Messrs. Allen Samuels, Inc. and Eric Snyder
3400 North Causeway
Metairie, Louisiana 70002
Re: Authorization of sale concerning 785 acres in Terrebonne Parish, Louisiana Dated January 19, 1973
Gentlemen:
Zapata Development Corporation hereby agrees to extend the above authorization until October 1, 1973. The receipt of the required $50,000.00 earnest money deposit is hereby acknowledged. In addition to terms and conditions contained in the above agreement, Zapata Development Corporation agrees to:
Purchaser shall have the right to purchase subject property for cash in the amount of $2,250,000.00; such right shall be exercised by purchaser’s depositing an additional $50,000.00 within ninety days after the date of this letter. In the event purchaser so elects, closing shall take place within ninety days after the payment of the second $50,000.00
Other than the change above, all terms and conditions of said agreement shall remain in full force and effect.
Sincerely yours,
(s) Christian N. Seger”

From this document it appears the nature of the $50,000 received as earnest money was not changed by mutual consent to be consideration to support a 90-day option. The amending language simply indicates an additional $50,000 would have to be deposited when and if the offer was accepted. There is nothing to indicate the seller stipulated it would retain the earnest money if the parties were not able to reach an agreement to terms and conditions that could be incorporated into a contract to sell. The language that suggests an option was granted is:

“Purchaser shall have the right to purchase subject property for cash in the amount of $2,250,000.00; such right shall be exercised by purchaser's depositing an additional $50,000.00 within ninety days after the date of this letter. * * * ” (Emphasis added.)

The emphasized wording is often used in contracts granting an option, yet the reaffirmation of the terms and conditions of the original listing agreement in which the $50,000 was treated as a deposit to be applied to the purchase price creates confusion. C.C. art. 1949 directs us to look to prior or subsequent writings to resolve the doubt. We think the writings considered as a whole evince an intent to pay and accept the $50,000 as a deposit toward a future sale, not consideration to support the granting of an option.

Even were we to conclude no clear intent emerges and the reason for the payment of $50,000 remains obscure, C.C. art. 1958 would require our resolving the ambiguity against defendant.

Whatever rights were acquired by the brokers Samuels and Snyder by the writings detailed were assigned to plaintiffs on November 8, 1973. Before the assignment was taken, Pfister telephoned Christian Seger, vice president of Zapata, to advise that surface rights were a problem. Seger was aware the purchasers could not use the land or obtain financing if they were not cleared. Because Seger assured Pfister the surface rights could be cleared, Pfister entered into the assignment agreement on plaintiffs’ behalf.

In January 1974 the principals to this agreement and various advisory persons met in New Orleans to formalize the terms previously discussed. This was never accomplished. The purchasers did not sign an agreement prepared by a Texas attorney, and the prospective seller refused to sign a written agreement prepared by the would-be buyers’ Louisiana attorney. Title was never tendered by the seller.

In short, there was no contract. Defendant could not deliver unrestricted surface rights, and without this, the purpose for which plaintiffs wished to acquire the land could not be accomplished.

Under these facts the trial court properly treated this as an action in rem verso and ordered defendant to return the $50,000 on the theory it had a quasi contractual obligation to restore funds that unjustly enriched it at plaintiffs’ expense. The concept and application of the unjust enrichment remedy is discussed at length in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Equitable in nature, it is available to afford relief if a related enrichment and concomitant loss is not supported by consideration and there is no other procedural device that can be used to redress the injustice. The facts of this case warrant our application of the Minyard rule.

Having concluded there was no contract obviates oür considering the answer to this appeal.

For the reasons assigned the judgment appealed from is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED.

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

      . 144 La. 100, 80 So. 214 (1918).


text:
    Pat Delaney, wife of Carl F. DELANEY v. Carl F. DELANEY.
    No. 7674.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.

      Jesse S. Guillot, Emile W. Schneider, New Orleans, for plaintiff-appellee.
    Reed, Reed & D’Antonio, Floyd J. Reed, Bruce G. Reed, Metairie, for defendant-appellant.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Appellant, Carl F. Delaney, has appealed a judgment awarding Pat Delaney, his judicially separated wife, $700 per month alimony and child support. He contends the judgment is a nullity because it issued from a summary proceeding at a time when C.C.P. art. 2592 did not authorize its use for that purpose.

Plaintiff, Pat Delaney, filed suit for separation on May 11, 1972 and was awarded $300 per month alimony pendente lite and child support by a judgment on a rule rendered June 23, 1972. On September 28, 1972, Mrs. Delaney was awarded a separation from bed and board in a default judgment; however, the decree was silent as to alimony or child support. On August 16, 1973, Mrs. Delaney, still not divorced, filed a rule to fix alimony and increase child support. Defendant’s objection to the use of summary proceedings was overruled, the matter was tried and the judgment from which this appeal is lodged was rendered.

The premise upon which appellant builds his argument is that this rule to fix alimony is an original action, not an incidental demand. Appellant claims the pendente lite alimony, fixed by rule in limine, terminated with the judgment of separation that was silent as to alimony, thus the effort to reestablish it must be considered an original action. Thevis v. Thevis, 254 So.2d 480 (La.App.3d Cir. 1971), cited by appellant, does hold that alimony pendente lite terminates with a judgment of separation unless it is reaffirmed in that decree. This circuit disagrees. Adams v. Adams, 243 So.2d 318 (La.App. 4th Cir. 1971), writs refused, 258 La. 212, 245 So.2d 410.

In Adams, the judgment of separation was silent as to alimony pendente lite that had been previously established by rule. Approximately ten months after the judgment of separation, Mrs. Adams brought a new rule to fix alimony pendente lite and thereafter her husband began making payments under the new rule. Then she filed a rule to make the first judgment executory for the period between the judgment of separation and the time she brought the new rule. In allowing her to recover we rejected the same contention appellant makes here for this reason:

“Had this been a final judgment of divorce and was silent with regard to alimony, then alimony would stop because the husband’s obligation to support his wife would no longer exist. This is well settled, Starkey v. Starkey, La.App., 209 So.2d 593 (1st Cir. 1967). However, this is not the case when there is a judgment of separation from bed and board. Under the provisions of article 148 of the Civil Code, as interpreted by the courts, the wife is entitled to alimony for her support from the time of the institution of a suit for separation from bed and board until a judgment of final divorce has been rendered to the parties, regardless of the question of fault. Boucvalt v. Boucvalt, 235 La. 421, 104 So.2d 157 (1958); Stevens v. Stevens, La.App., 206 So.2d 558 (1st Cir. 1968). The right of the wife to receive alimony during the pendency of a suit for divorce or separation from bed and board is merely the obligation of the husband to support his wife because although a judgment of separation from bed and board terminates the spouse’s conjugal cohabitation and their community of acquets and gains, it does not dissolve the marriage itself, nor extinguish the obligation of fidelity and the duty of support and assistance provided in Articles 119 and 120 of the Civil Code. Boucvalt v. Boucvalt, supra; Arnold v. Arnold, 186 La. 323, 172 So. 172 (1937); Hillard v. Hillard, 225 La. 507, 73 So.2d 442 (1954); Stevens v. Stevens, supra, LSA-C.C. Article 136.” 243 So.2d at 320.

We reaffirm the Adams rationale which buttresses the conclusion that the rule brought by appellee herein was incidental to the original suit for separation and properly the subject of a summary proceeding under C.C.P. art. 2592(1). It provides:

“Summary proceedings may be used for the trial or disposition of the following matters only:
(1) An incidental question arising in the course of litigation * * *.”

In reaching this result we are aware this procedural article was amended in 1974, subsequent to the time this rule was tried, to include, inter alia, Paragraph 8 as follows:

“The original granting of, subsequent change in, or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants * * *

Interpreted in the light most favorable to the appellant, this might be construed to expand the use of summary process in the domestic relations area where it was unavailable before. But we cannot endorse this thinking. In our view this simply codifies ideas previously expressed in our jurisprudence wherein such actions could be brought summarily under C.C.P. art. 2592(1).

The original opinion in Nelson v. McCarter, 212 So.2d 467 (La.App. 2d Cir. 1968), held an action to change the amount of child support could be brought by rule under C.C.P. art. 2592(1). On rehearing this holding was watered down to dicta when the court reaffirmed this view, but based its result on the principle that appellee waived his right to object to use of summary process by proceeding to trial without objecting. The right to alter child support by rule is one of the incidental actions in a domestic relations case specifically confirmed by the 1974 amending paragraph 8.

That alimony and child support matters have been traditionally handled as adjuncts of a divorce or separation suit is exemplified by this language from Davis v. Davis, 238 La. 293, 115 So.2d 355, 356 (1959):

“ * * * From the fact, however, that the right to trial by jury obtains in cases involving a divorce, it does not necessarily follow that the same right exists with respect to the issues of custody of the children born of the marriage and alimony for their support. While these issues are incidental to and arise out of the main demand, they are nevertheless matters to be tried and determined by the judge without the intervention of a jury * * *. Moreover, the jurisprudence in this state is well settled that such judgments are never final, being subject to modification by the judge in summary proceedings instituted by either party * * *

Of course the issue in Davis — the right to trial by jury — is different than the one before us but the language demonstrates the traditional handling of alimony matters as incidental to the main suit for divorce or separation.

Therefore we hold that summary procedure in this case was proper under C.C.P. art. 2592(1).

For the reasons assigned, the judgment appealed from is affirmed, costs of this appeal to be paid by appellant.

AFFIRMED.


text:
    Edwin WERNER, Jr. v. PATRIOT GENERAL INSURANCE COMPANY and Ellau Sheppard.
    No. 7686.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Refused Feb. 9, 1977.
    Dufour, Levy, Marx, Lucas & Osborne, Patrick A. Rankin, New Orleans, for plaintiff-appellant.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for defendant-appellee.
    Peter C. Keenan, New Orleans, for defendant-appellee.
    Before LEMMON, MORIAL and BEER, JJ.
   BEER, Judge.

Edwin Werner, Jr. filed this tort action against Ellau Sheppard and Werner’s uninsured motorist carrier, Patriot General Insurance Company (hereafter, “Patriot”), seeking recompense for injuries resulting from an intersectional collision between Werner’s bicycle and Sheppard’s uninsured automobile. Patriot then filed a third party demand against Sheppard for reimbursement of any award in favor of Werner and against Patriot. Trial resulted in judgment, without written reasons, in favor of Sheppard and against Werner who devolu-tively appeals.

Since Werner has acknowledged that he was riding his bicycle in the wrong direction on a one-way street, the sole legal issue now before us is whether Sheppard had the last clear chance to avoid the accident.

Sheppard testified that he was proceeding on Harmony Street. Upon reaching the intersection at Carondelet Street, he stopped “for a few seconds.” Normally, this intersection was controlled. Sheppard testified, and witness Jashim corroborated, that, at one time, a stop sign stood at the corner controlling traffic on Harmony but “. . . kids swung on it and tore it down.” At any rate, Sheppard, having stopped, looked down Carondelet, a one-way street, in the direction from which traffic would normally flow, saw it was clear, also ascertained that the intersection was clear, and proceeded forward. After traveling four or five feet from the stopped position and after only a “split second” had elapsed, his automobile collided with Werner’s bicycle which had come to be directly in front of it at the moment of contact. Concurrently, Sheppard “slammed the brakes on.” He denies seeing the bicycle prior to the collision. Werner contradicts Sheppard on this point, contending that Sheppard was looking in his (Werner’s direction just before he started up from his stopped position.

Werner testified that he was riding close to the curb “at a very slow, casual speed, in low gear,” and maintained a constant speed until the time of impact. He saw that Sheppard had stopped at the intersection and so he continued traveling at a constant speed, expecting to clear that intersection before Sheppard would pull out across Car-ondelet Street. He acknowledges that he was proceeding in the wrong direction on a one-way street but contends that “the area was wide open and I would expect he would stop when he saw me coming.” When his bicycle was in the intersection, he suddenly heard the “gunning of the engine” and then Sheppard’s vehicle “lunged forward” to the point of impact and was “digging out.” The balance of Werner’s testimony was devoted to describing his injuries, treatment and resultant expenses.

Mrs. Joseph Hebert, Jr. was called by Werner whom she had known as an acquaintance of her daughter. She saw him soon after the accident and corroborated his testimony regarding his alleged injuries, noting that his head was bleeding, he was dazed, and “a little incoherent,” but could walk.

Mrs. Janice Fleming was also called by Werner. She also corroborated Werner’s alleged injuries but was of the view that the bike was not much damaged.

Miss Wadenis Jashim was called by Sheppard. She lives near the corner of Caronde-let and Harmony, and witnessed the accident from her porch where she was seated. She reports:

“Yes. The gentleman here in the chair (indicating), as he was coming, when Mr. Sheppard had stopped and went to pull off, he rode his bike in front of him, and Mr. Sheppard bumped him and he fell on the ground. He didn’t really hit him. It wasn’t a skid or a hard pull-off from the corner, and he fell from his bike.”

Werner contends that the trial judge erred in failing to apply the Doctrine of Last Clear Chance, claiming that the requisite elements of the doctrine were established by the uncontroverted testimony of both parties. Sheppard urges that he had no duty to look toward the direction from which Werner was coming, acted reasonably under the circumstances, and was not negligent at all — thus obviating any basis for the applicability of the doctrine.

In Scott v. Glazer, 164 So.2d 185 (La.App. 4th Cir., 1964), we noted that:

“A litigant relying upon the doctrine of last clear chance has the burden of proving all facts and circumstances essential to its application. Pate v. State Farm Mutual Automobile Ins. Co., La.App., 147 So.2d 766; Phares v. Biggs, La.App., 135 So.2d 507; Fontenot v. Travelers Indemnity Company, La.App., 134 So.2d 330; Lawrence v. Core, La.App., 132 So.2d 82; Franicevich v. Lirette, 241 La. 466, 129 So.2d 740. Before the doctrine can be successfully invoked three essential facts must be established: (1) that the person invoking the doctrine was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that the person against whom the doctrine is invoked actually discovered or was in a position where he could and should have discovered such other person’s peril; and (3) that at such time the person against whom the doctrine is invoked could have avoided the accident with the exercise of reasonable care. Sonnier v. Great American Insurance Company, La.App., 134 So.2d 363; Lavigne v. Southern Farm Bureau Casualty Ins. Co., La.App., 125 So.2d 430; Clark v. Shannon, La.App., 120 So.2d 307; Wells v. Meshell, La.App., 115 So.2d 648; Moore v. Shreveport Transit Company, La.App., 115 So.2d 218; Newton v. Pacillo, La.App., 111 So.2d 895.”

These elements were again enunciated in Evans v. Johnson, 236 So.2d 285 (La.App. 4th Cir., 1970), and the numerous cases cited therein in support thereof.

Werner relies upon Biggs v. Verbois, 151 So.2d 172 (La.App. 1st Cir., 1963) cert. ref. 244 La. 465, 152 So.2d 561. In that case, a bicycle rider entered an intersection from an unfavored street without looking either left or right and collided with a motorist traveling on a favored street. Our brothers in the First Circuit determined that the bicyclist was contributorily negligent and also determined that a motorist on a superi- or thoroughfare approaching an intersection has the right to assume that a bike rider would obey the law and bring her bicycle to a stop. However, they further determined that the motorist either realized or should reasonably have realized — in time to avoid an accident — that the bike rider was obviously going to continue into the intersection in disregard of the right of way. Thus, they concluded that the motorist had not exercised ordinary care nor maintained a proper lookout by disregarding the obvious. The court applied the Last Clear Chance Doctrine and concluded:

“Therefore, had Mrs. Verbois been keeping a proper lookout she could have and should have seen Patricia Biggs when she passed the stop sign and/or entered the intersection, and at either time there was more than sufficient distance between the two vehicles for her to have avoided the accident by sounding her horn or bringing her car to a stop. She had the last clear chance to avoid this collision.” (Emphasis ours.)

In the case at bar, only a “split second” elapsed between acceleration and impact. Furthermore, the uncontradicted testimony of Sheppard was that his vehicle had traveled only four or five feet from where he had stopped initially to the point of collision. Clearly, there was not sufficient distance between the two vehicles for Sheppard to have avoided the accident.

With this distinction in mind, it is important to note that in Sanford v. Thompson, 174 So.2d 865 (La.App. 1st Cir., 1965), writ ref. 248 La. 124, 176 So.2d 452, the First Circuit found Last Clear Chance inapplicable, holding:

“We do not find nor see from the record how young Thompson could have discovered the peril of Henry more quickly than he did, nor do we believe he could have done anything other than what he did in an effort to avert the accident. We are dealing with very short distances and split second timing. In retrospect, we may feel that other action might have been taken that would have altered the outcome, but that is not the true test in judging the action and conduct of Royce Thompson. We must view his action and reactions in the light of the exigency of the occasion. In doing this, we do not find young Thompson had the last clear chance to avert the accident.” (Emphasis ours.)

In Ratliff v. All State Ins. Co., 149 So.2d 100 (La.App. 3rd Cir., 1963), a bicyclist entered an intersection, disregarding a stop sign. Neither he nor the approaching motorist saw the other prior to the collision. The court upheld the trial court’s finding of negligence on the part of both parties but was unwilling to impose the Last Clear Chance Doctrine since “. . . allowing for reaction time, she (defendant) could not reasonably have avoided the accident after the motor bike (plaintiff) suddenly entered the intersection towards and across her path.”

In Mugnier v. Checker Cab Company, 309 So.2d 747 (La.App. 4th Cir., 1975), plaintiff was riding her bicycle on General Pershing, a one-way street, the wrong way. At the intersection with St. Charles Avenue, she stopped and observed a taxi in the neutral ground crossing of General Pershing with its left turn indicator blinking. The taxi driver was not looking at plaintiff but rather to his right at the oncoming traffic. The plaintiff proceeded to cross St. Charles Avenue and the taxi driver concurrently made his left turn with the inevitable collision resulting. We concluded, inter alia, that:

1. The taxi driver was negligent for not looking in the direction he was traveling immediately prior to the accident;
2. The plaintiff was guilty of contributory negligence for riding the wrong way down a one-way street, and, for proceeding after plaintiff noticed defendant about to turn left; and
3. The Last Clear Chance Doctrine was not applicable since defendant could not have avoided the accident and was under a more compelling obligation to look to his right for oncoming traffic.

Finally, in Klibert v. Brewer, 301 So.2d 889 (La.App. 4th Cir., 1974), writ den. La., 305 So.2d 131, the following facts existed:

“The accident occurred on a clear afternoon in a residential subdivision in La-Place, Louisiana. As defendant was proceeding along Madewood Road in a westerly direction he approached a “T” intersection with Melrose Lane entering Madewood from the south when Miss Kli-bert, who had been riding her bicycle in the same direction on the north sidewalk of Madewood, came from the sidewalk and a driveway into the path of his car.” In reversing the trial court, we held that: “Brewer was traveling within the speed limit. He was under a duty to observe Madewood Road ahead of him and Mel-rose Lane to his left so as to be on the lookout for other vehicles. He was not under any duty to peer around every parked automobile and to keep his attention focused on the sidewalk to his right so as to be on the lookout for pedestrians, but on the contrary he had a right to assume that any pedestrians would remain in their positions of safety off the roadway. Even had Brewer seen Miss Klibert, which he could not and did not, he would have had the right to assume that she would remain on the sidewalk or driveway until he passed.”

Here, Werner, by his own admission, én-tered the intersection traveling in the wrong direction on a one-way street. He admitted seeing Sheppard’s car approaching the intersection some time before he reached it but presumed Sheppard would stop.

Sheppard’s duty was to observe the street ahead of him and to observe properly directed traffic on Carondelet as he approached the intersection. He had a right to assume that vehicles would not be traveling in the wrong direction on Carondelet. He could not reasonably foresee, nor had he a duty to anticipate, that someone would violate the law in the manner acknowledged by Werner. Applying the duty-risk formula, we conclude that Sheppard’s duty did not encompass the risk of harm which materialized herein. Last Clear Chance is not applicable. Only a “split second”— enough time for the vehicle to travel four or five feet — elapsed from the moment of acceleration to the time of impact. Sheppard did not have sufficient time to avoid the accident. Werner’s contention that Sheppard “should have discovered” Wer-ner’s peril is untenable.

The judgment is not manifestly erroneous and is affirmed, all costs of this appeal to be borne by the plaintiff-appellant.

AFFIRMED.

LEMMON, Judge

(concurring).

Werner was negligent in moving his bicycle in front of the momentarily stopped automobile from a direction in which traffic was not reasonably to be expected, without ascertaining that the driver was aware of his presence.

Sheppard was negligent in moving forward from the stopped position into the intersection when the bicycle was directly ahead of him, apparently without first ascertaining that his path was clear, a duty required of a yielding motorist.

A second or two before the collision, either could have avoided the accident, Wer-ner by stopping and Sheppard by remaining stopped, and neither had yet acted negligently. When each acted at the same instant in disregard of the other, neither had sufficient time to discover the peril of the other resulting from his own negligence. Thus, neither had an opportunity for the last clear chance to avoid the accident.


text:
    RELIABLE CREDIT SERVICE, INC. v. Anthony C. BERNARD and Mrs. Rosemary L. Bernard.
    No. 7695.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writs Refused Feb. 11, 1977.
    Louis G. Dutel, Jr., William J. Dutel, New Orleans, for plaintiff-appellee.

      Michael H. Piper, III, New Orleans, for defendants-appellants.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Reliable Credit Service, Inc., obtained a judgment of $497.48 plus interest and attorney fees in a suit on a promissory note. Defendants, Anthony C. and Rosemary L. Bernard, have appealed to reurge their affirmative defense of setoff. They claim plaintiff is subject to a $960.76 penalty authorized by 15 U.S.C. § 1640(a)(1) for violating two provisions of the disclosure section of the Truth in Lending Act generally referred to as Regulation Z, namely 12 CFR § 226.8(b)(5) and § 226.-4(a). In this court appellee filed exceptions of prescription and lack of jurisdiction in bar of the setoff plea.

The peremptory exception of prescription is based on 15 U.S.C. § 1640(e), which sets a time limit of one year for filing an action for penalties from the date of the occurrence. It is not disputed that May 3,1974 is the date of the occurrence in this case or that plaintiff’s suit on the note and the subsequent assertion of the disputed affirmative defense were filed more than a year after the occurrence. See Stevens v. Rock Springs National Bank, 10 Cir., 497 F.2d 307 (1974), and Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (E.D.N.Y.) (1973). Appellants nonetheless maintain that while the penalty claim is lost to them as an affirmative action it nonetheless remains a viable defense under C.C.P. art. 424, viz:

“A person who has a right to enforce an obligation also has a right to use his cause of action as a defense. A prescribed obligation may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff.”

In Termplan Mid-City, Inc. v. Laughlin, 333 So.2d 738 (La.App. 4th Cir. 1976), we held that a time-barred penalty claim under 15 U.S.C. § 1640 could be the basis of a valid affirmative defense of setoff. This same result was reached by an Illinois appellate court in Wood Acceptance Co. v. King, 18 Ill.App.3d 149, 309 N.E.2d 403 (1974).

In Hodges v. Community Loan & Investment Corp., 133 Ga.App. 336, 210 S.E.2d 826 (1974), a Georgia court reached an opposite result but its views are not inconsistent with Term pian or Wood. That court disallowed a plea of setoff based on a penalty claim under Truth in Lending solely because Georgia law recognizes a claim in setoff only if it grows out of the mutual covenants of the contract and is not an “extrinsic by-product” of the transaction. Nowhere does the court suggest the federal time limitation is the factor barring the setoff defense.

Unlike the Georgia statute, C.C.P. art. 424 permits use of any prescribed obligation “ * * * incidental to, or connected with, the obligation sought to be enforced * * *.” Appellee contends 15 U.S.C. § 1640(h), as amended in 1974, is controlling federal legislation that preempts the use of C.C.P. art. 424 to defend this type of action. We disagree. The section provides:

“A person may not take any action to offset any amount for which a creditor is potentially liable to such person under subsection (a)(2) of this section against any amount owing to such creditor by such person, unless the amount of the creditor’s liability to such person has been determined by judgment of a court of competent jurisdiction in an action to which such person was a party.” 15 U.S.C. § 1640(h).

We interpret this to mean that the lender’s claim may be offset by Truth in Lending penalties only if the potential liability of the lender has been liquidated by judgment rendered after the lender as a party to the lawsuit had an opportunity to be heard and defend against the claim. We further hold state courts have concurrent jurisdiction to hear claims under 15 U.S.C. § 1640 and meet the court of competent jurisdiction requirement of Section (h). See Lewis v. Delta Loans, Inc., 300 So.2d 142 (Miss.1974).

Appellee would have us apply the holding of a federal district court in Missouri to support its contention that we lack jurisdiction to entertain the claim of setoff. Fenton v. Citizens Savings Association, 400 F.Supp. 874 (W.D.Mo.1975), simply holds that 15 U.S.C. § 1640(e) confers jurisdiction on federal district courts to adjudicate a complaint by a consumer for Truth in Lending violations if the action is initiated within one year. If the complainant permits the year to go by without acting, the time for filing suit has passed and the court, whose jurisdiction was conferred by the act, no longer has any jurisdictional basis for hearing the suit. Had the Fenton court approached this decision from a laches standpoint, it would have reached the same result. The emphasis in Fenton’s limitation is on initiating the action.

There is nothing in Fenton to suggest a C.C.P. art. 424 defense — permitting the defendant to use as a shield' what he can no longer use as a sword — is precluded because the state does not have jurisdiction to entertain it. The federal court is simply passing on its own lack of jurisdiction.

Accordingly we overrule the exceptions of prescription and lack of jurisdiction.

Turning to the merits, we hold the creditor failed to describe the stereo component set on the disclosure statement on which it had taken a chattel mortgage contrary to 12 CFR § 2268(b)(5). Not only does appellants’ copy of the disclosure statement fail to note the property mortgaged, but also it appears when it is compared with the original document produced by the vendor that plaintiff’s original and defendants’ copy were typed at different times. The original has small boxes to the left of two paragraphs “x”ed, while the purported copy does not. The original states “1 stereo component set” is mortgaged; the alleged carbon copy contains no such notation. The carbon copy carries a schedule of 24 monthly payments that does not appear on the original. Appellee’s explanation for the variations lacks credence.

We conclude plaintiff violated one part of Regulation Z in failing to describe the property subject to the chattel mortgage. We need not consider the other alleged violation because the penalty is the same whether there is one or many infractions growing out of one transaction. 15 U.S.C. § 1640(g). In this case the finance charge was $240.19 and each defendant is entitled to a penalty of double that amount, or $480.38. The total credit to both defendants is $960.76.

For the reasons assigned, the peremptory and declinatory exceptions filed in this court are overruled and the judgment appealed from is amended to allow each defendant a credit of $480.38 against the amount for which they are liable to plaintiff, which said credit is allowable as of December 30, 1975, the date of rendition of the judgment appealed from. As thus amended, the judgment appealed from is affirmed. Appellee is to pay the costs of this appeal.

EXCEPTIONS OVERRULED; JUDGMENT AMENDED AND AFFIRMED.

      . “Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
      (1)twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000 * 15 U.S.C. § 1640(a)(1). ■

      . “A description or identification of the type of any security interest held or to be- retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates or, if such property is not identifiable, an explanation of the manner in which the creditor retains or may acquire a security interest in such property which the creditor is unable to identify. In any such case where a clear identification of such property cannot properly be made on the disclosure statement due to the length of such identification, the note, other instrument evidencing the obligation, or separate disclosure statement shall contain reference to a separate pledge agreement, or a financing statement, mortgage, deed of trust, or similar document evidencing the security interest, a copy of which shall be furnished to the customer by the creditor as promptly as practicable. If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.” 12 CFR § 226.8(b)(5).
      “General rule. Except as otherwise provided in this section, the amount of the finance charge in connection with any transaction shall be determined as the sum of all charges, payable directly or indirectly by the customer, and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the customer, the seller, or any other person on behalf of the customer to the creditor or to a third party, including any of the following types of charges:
      (1) Interest, time price differential, and any amount payable under a discount or other system of additional charges.
      (2) Service, transaction, activity, or carrying charge.
      (3) Loan fee, points, finder’s fee, or similar charge.
      (4) Fee for an appraisal, investigation, or credit report.” 12 CFR § 226.4(a).

      .“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e).


author: MORIAL, Judge.

text:
    E. Roland KEATING v. Alton J. MILLER.
    No. 7699.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Refused Feb. 3, 1977.
    Alfred Abramson, La Place, for plaintiff-appellee.
    Daniel E. Becnel, Jr., Reserve, for defendant-appellant.
    Before LEMMON, MORIAL and BEER, JJ.
   MORIAL, Judge.

This case is on appeal from a judgment of the district court in favor of the plaintiff in the amount of $4,330.42 after a trial pursuant to a remand by this court. See Keating v. Miller, 292 So.2d 759 (La.App. 4 Cir. 1974).

The district court found that the defendant had expended a total of $18,159.00 to complete the construction of his house. This sum includes $11,000.00 previously paid to the plaintiff. The district court concluded that the defendant had not expended any monies in excess of the contract price of $19,300.00 and, therefore, was not due any reimbursement from the plaintiff. On the basis of quantum meruit, the district court after allowing defendant a credit for the $11,000.00 awarded plaintiff $4,330.42, which included plaintiff’s costs for materials, labor, subcontractors and a 20% profit.

Even where there is a lack of substantial performance, as in this case, a contractor has a right to sue to recover the value of work which has inured to the benefit of the owner. However, where a contract price has been agreed upon by the parties and the contractor breaches the contract his recovery is limited to the contract price less the damages caused by his noncompliance. These damages are assessed at the amount expended by the owner to perfect or complete the work. See Bouterie v. Carre, 6 So.2d 218 (Orl.La.App.1942). The application of this formula accords with the provisions of Article 25 of the contract. See Keating v. Miller, supra.

The total costs of completion to defendant substantiated by invoices in the original record are as follows:

The original contract price was $19,300.00 from which we deduct $11,000.00 previously paid to the plaintiff which left a balance due under the contract of $8,300.00. Applying the formula of Bouterie, supra and Article 25 of the contract this amount must be reduced by the sum of $7,617.57 expended by defendant to complete the work in a workmanlike manner to determine the value and benefit which defendant has received and now enjoys. Therefore, we conclude that plaintiff is entitled to recover the amount of $682.43.

For the foregoing reasons the judgment appealed is amended by reducing the sum awarded to the plaintiff from $4,330.42 to $682.43, and, as thus amended, it is affirmed. Each party to bear his own costs.

AMENDED AND AFFIRMED.


author: CULPEPPER, Judge. GUIDRY, Judge

text:
    Roma Gail STELLY, Plaintiff and Appellant, v. Richard Keith MONTGOMERY, Defendant and Appellee.
    No. 5652.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Granted Feb. 14, 1977.

      Leon S. Haas, Jr., Opelousas, for plaintiff-appellant.
    C. Kenneth Deshotel, Opelousas, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

The plaintiff, Roma Gail Stelly, filed this suit against her husband, Richard Keith Montgomery, seeking a writ of habeas corpus ordering defendant to deliver to plaintiff custody of the two minor children born of the marriage, Richard K. Montgomery, Jr., age 5, and Michael Troy Montgomery, age 14 months. After a trial on the merits, the district judge vacated the writ and rejected plaintiff’s demands for custody. Plaintiff appealed.

The decisive issue on appeal is whether the plaintiff wife may sue her husband for a writ of habeas corpus awarding her custody of the children, where the marriage still continues and there is no pending suit for separation from bed and board or divorce.

The pertinent facts are that plaintiff and defendant were married in St. Landry Parish, Louisiana on September 25, 1969. Initially they lived in Louisiana. In December of 1973 they moved to Georgia. By 1976 the two children were born of the marriage.

During the early part of 1976, plaintiff and defendant had marital difficulties because of plaintiffs alleged immoral relations with another man. On May 9, 1976, the defendant left Georgia with the oldest child and moved back to St. Landry Parish, Louisiana to the home of his parents. On June 4, 1976, defendant went back to Georgia where he allegedly found his wife was living with the man in question. Defendant took the youngest child and returned with it to Louisiana. Defendant now has physical custody of the two children and lives with his parents in Louisiana.

On June 11, 1976, the plaintiff mother filed in Louisiana the present petition for a writ of habeas corpus, seeking custody of the children. After a trial on the merits, the district judge decided that since the marriage still continues and there is no pending suit for separation or divorce, the husband and father has the right to custody of the children. Furthermore, the district judge held on the facts that it is for the best interest of the children that they remain in the father’s custody. On these two grounds, the writ of habeas corpus was vacated and the mother’s demand for custody was rejected.

We conclude that the wife does not have a cause of action against her husband, and that plaintiffs suit must be dismissed on a peremptory exception of no cause of action. Although no such exception was filed by the defendant, this is one of the peremptory exceptions which can be noticed by the appellate court on its own motion. LSA-C.C.P. Art. 927.

The plaintiff mother relies on State ex rel. Lasserre v. Michel, et al., 105 La. 741, 30 So. 122 (1901) in which the husband and father filed a petition for a writ of habeas corpus directed to his wife for the custody of their child. The marriage was still in existence and there was no pending suit for separation or divorce. The wife argued that this was not one of the specially permitted causes of action on which one spouse could sue the other under Article 105 of the Code of Practice of 1870 and the jurisprudence construing that article. The Supreme Court held that the marital relation did not prevent the husband from suing the wife for custody of the child and remanded the case to the district court for further proceedings. Counsel have not cited, nor have we found, any other case following this holding in Lasserre.

Article 105 of the Code of Practice of 1870 read as follows:

“Married woman — Right to sue husband.
—A married woman can not sue her husband as long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds her property separate from him by her marriage contract, or for divorce; but in no case can she sue her husband without the authorization of the court before which she brings her action.”

Although the Code of Practice of 1870 contained no similar prohibition of a suit by a husband against his wife during the marriage, jurisprudence suggested that Article 105 was mutually applicable to husbands and wives. See the notes, 16 Tul.L.Rev. 149,150 (1941) and 20 Tul.L.Rev. 448 (1945). Furthermore, with the adoption of Act 283 of 1928, declaring that married women are relieved of all disabilities and incapacities to which they were previously subject, it no longer became necessary that a married woman have authorization of the court to file suit.

Despite this history of statutory and jurisprudential problems regarding interspousal suits, our legislature adopted in 1960 the following new statute numbered R.S. 9-291:

“Wife may not sue husband; exceptions
“As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:
(1) A separation of property;
(2) The restitution and enjoyment of her paraphernal property;
(3) A separation from bed and board; or
(4) A divorce. Added Acts 1960, No. 31, § 2.
“Explanatory Note — Henry G. McMahon
“Added on the recommendation of the Louisiana State Law Institute to transfer thereto the provisions of Art. 105, Code of Practice of 1870. This new statute was enacted as Section 271 of this title, but was renumbered by the Louisiana State Law Institute to avoid conflict with prior legislation.”

In Wilkinson v. Wilkinson, La., 323 So.2d 120 (1975) our Supreme Court held that LSA-R.S. 9:291 limits to four the causes of action that a married woman can bring against her husband during the marriage. The court stated:

“The four enumerated in the statute are exclusive, not illustrative. Palmer v. Edwards, 156 So. 781 (La.App. 1st Cir. 1934). Thus, during the marriage, Mrs. Wilkinson could not have brought an action against her husband to annul the contract.”

The plaintiff wife makes an additional argument that since this is a petition for a writ of habeas corpus the State is actually the plaintiff and therefore the suit is not prohibited by LSA-R.S. 9:291. This argument is apparently derived from certain language in State ex rel. Lasserre v. Michel, supra. The court there stated:

“When the writ issues, the wife is called into court in the name of and by the state itself, though this be done on the relation of a husband. It is true that the ultimate action of the court upon the writ may be an aid in enforcement of private rights,— of the rights of the husband or of the wife in the premises, — but the result is incidental and consequential.”

The answer to this argument is that at the time Lasserre was decided in 1901, applications for writs of habeas corpus were brought in the name of the state. However, Article 3781 of our Code of Civil Procedure now expressly provides:

“A writ of habeas corpus, mandamus, or quo warranto may be ordered by the court only on petition. The proceedings may be tried summarily and the writ when ordered may be signed by the clerk under the seal of the court, or it may be issued and signed by the judge without further formality.”

Furthermore, jurisprudence from our Supreme Court subsequent to Lasserre has established the rule that where one parent attempts to obtain the custody of minor children from the other parent by a writ of habeas corpus, it is a civil proceeding between private individuals and the state is only a nominal party. State ex rel. Divens v. Johnson, 207 La. 23, 20 So.2d 412 (1944) and the cases cited therein.

Plaintiff also argues we should follow the rationale of the Lasserre case, where the court stated:

“We do not think that either husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce, to have the matter of the legal custody of the children judicially inquired into.”

When our legislature adopted LSA-R.S. 9:291 in 1960, it chose not to follow the above quoted rationale from Lasserre. Perhaps the legislature reasoned that permitting interspousal suits for custody during marriage, where there is no pending suit for separation or divorce, could cause many problems as to child support, administration of the child’s estate, liability for the child’s torts, etc. Apparently the legislature decided that all of these matters should be handled as incidental to separation or divorce proceedings. In any event, LSA-R.S. 9:291 is clear and free of ambiguity. Any change in the law as to interspousal suits is a matter which addresses itself to the discretion of the legislature.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge

(dissenting).

My esteemed brethren of the majority, in affirming the judgment of the trial court, determine that a wife physically separated from her husband, where no suit for separation or divorce has been instituted, cannot seek possession of her children from her husband under the sanction of judicial proceedings. Stated another way, the majority determines that a wife may not sue her husband for a writ of habeas corpus seeking custody of the children born of the marriage, except as an adjunct to a pending suit for separation from bed and board or divorce. In so concluding the majority fails to recognize the viability of a decision of the highest court of our state to the contrary and determines that, since the right of a wife to seek custody of her children during marriage is not one of the exceptions to interspousal suits recognized by LSA-R.S. 9:291, her petition for same states no cause of action.

In the early case of State ex rel. Lasserre v. Michel et al., 105 La. 741, 30 So. 122 (1901) this very issue was squarely presented to our Supreme Court. In the cited case the court determined that the custody of children, as between contesting parents not legally separated or divorced, could be considered and determined on an application for a writ of habeas corpus. In so deciding the court sagely reasoned as follows:

“We do not think that either husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce, to have the matter of legal custody of the children judicially inquired into. Actions of separation or divorce should not be forced; nor do we think that where husband and wife are, as a matter of fact living apart, the spouse out of the possession of the children of the marriage and claiming the legal right to have such possession should be driven to force or to fraud to obtain the same. Such a course of conduct would tend directly to breaches of the peace and violence. It is right, proper, and legal for the party entitled to possession of the child to obtain the same under the sanction of judicial proceedings.”

The majority, in declining to follow the clear holding of Lasserre v. Michel, supra, concludes that the holding of that case is no longer viable because when decided in 1901, applications for writs of habeas corpus were brought in the name of the state (Art. 791 of the Code of Practice of 1870) and this is no longer necessary under the Louisiana Code of Civil Procedure enacted by Act No. 15 of I960.' The majority thus reasons that since this is a proceeding solely between husband and wife and not within the exceptions provided for in LSA-R.S. 9:291 the wife’s petition for a writ of habeas corpus states no cause of action. I cannot agree. Long prior to the adoption of the 1960 Code of Practice and at the time of the Lasserre decision it was well established that a suit, such as this, need not be instituted in the name of the state. State ex rel. Dardenne v. Cole, 33 La.Ann. 1356 (1881); Davenport v. Sterling Lumber Co., 143 La. 671, 79 So. 215 (1918); State ex rel. Divens v. Johnson, 207 La. 23, 20 So.2d 412 (1944). There is no real substantive difference between LSA-C.C.P. Article 3781 et seq. and the source articles of the Code of Practice of 1870 or between LSA-R.S. 9:291 and its source, Article 105 of the Code of Practice. The court in Lasserre, supra, in addressing itself to this very point, i. e., that such a proceeding between husband and wife was prohibited under Article 105 of the Code of Practice, stated:

. . The parents, in issues of this kind, are not simply urging their own legal rights, but are acting for and on behalf of the child; and in respect to this matter the state itself, as stated in the Bermudez Case, has an interest which goes beyond the mere right and authority of either the father or mother. .
We scarcely think that a writ of habeas corpus, directed to a woman, touching the custody of a minor child, can be called a suit by the husband against the wife

The decision in State ex rel. Lasserre v. Michel et al., clearly supports the conclusion that the trial court was vested with jurisdiction to hear and decide the question of custody in this case. I would follow the clear holding of that case.

The majority, having determined that the mother’s petition for custody stated no cause of action, did not consider the issue presented on its merits. The trial court did consider the matter on its merits and ordered the writ of habeas corpus vacated and recalled, which action, in effect, awards custody of the children to the father. I would reverse.

In so deciding the trial judge reasoned that in matters of custody, where the natural parents, although physically separated, are neither legally separated or divorced, the father, as traditional head of the family, has a preferential right to the custody of the children born of the marriage; that such custody cannot be taken from him absent proof that his parental authority over the children has been abused or misused; and, that, in such instances, the contesting wife bears the burden of establishing his unfitness. In short, the trial court held that the well established guide lines governing awards of custody in separation and divorce matters, i. e., (1) the paramount consideration in determining to whom custody should be granted is always the welfare of the children; and, (2) generally, it is in the best interest of the children that their custody be awarded to the mother, especially where such children are of tender years; are not applicable while the marriage of the parents is intact, although they be physically separated. In this connection I quote from the learned trial judge’s reasons for judgment:

“Now, the problem we are faced with herewith is that these people were married and lived together in Louisiana, both being from Louisiana; they moved to Georgia; the marriage was broken up in Georgia; the husband came back to Louisiana with the children. The question now arises as to what disposition to make of these children. The court points out that if this were a divorce or a separation proceeding, there would be strong authority placing these children in the hands of the mother. . . .”
“. . .On one side we have the inner play of the law which emanates from divorce and separation proceedings, which gives normally the custody of small children, ... to the mother. On the other hand, we have the problem of parental control . . .”
“. . .In this situation that we have at hand, we have a challenge to this authority (parental authority) without the break-up of the marriage. This Court is of the opinion that where such a challenge comes, not as a concomitant of alimony or divorce, but comes as a challenge to the husband’s authority as head and master of the community, that the burden must necessarily be on the wife.” (Emphasis mine)

I would determine that in concluding as he did the learned trial judge fell into error. There is no sound or cogent reason which would dictate that in matters of custody, where children of tender years are involved, the rules governing the award of custody should differ depending upon the legal status of the contesting parents. Such determination is clearly contrary to the sage reasoning announced in the early case of State ex rel. Lasserre v. Michel et al., supra, that neither husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce in order to have the matter of legal custody of the children judicially inquired into. Such determination also clearly violates the cardinal rule predominant in all custody matters that the paramount consideration is always the welfare of the children. I would conclude that in the instant matter the trial court should have considered the issue presented in light of the well established jurisprudential guidelines which are applicable in all matters involving child custody and failing to do so he committed error.

In deciding the issue presented on its merits, I would do so in light of the clear and understandable guidelines as set forth by our Supreme Court in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). In the recent case of Bourque v. Leger, 322 So.2d 784, 786 (La.App. 3rd Cir. 1975, writ refused February 6, 1976) we briefly summarized the legal principles announced in Fulco to be as follows:

“As stated in Fulco the following legal principles are applicable in determining the award of custody of children: (1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children; (2) generally, it is in the best interest of the children that their custody be awarded to the mother; (3) when the trial court has made a considered decree of permanent custody, the party seeking to change that custody bears a heavy burden of proving that the best interest and welfare of the children will be served by making that change, even though it involves removing-them from the environment to which they are accustomed; and (4) on appellate review, the determination made by the trial judge in a child custody matter is entitled to great weight, and his decision as to custody will not be disturbed in the absence of a clear showing of abuse of the great discretion which is vested in him.”

The record reflects that the children involved are of tender years, one being five years old and the other fourteen months. All of the witnesses who testified, including the defendant husband, and his parents, acknowledged that plaintiff had a great love for her children and that if they were committed to her care they would be well provided and cared for. The trial judge in his written reasons so found stating:

“The court further finds as a fact, whether the children are given to the mother, or whether the children are given to the father, they will be physically well cared for as they have been in the past.
The court further finds as a fact that all of these people, including the grandparents on both sides, have a great love for these children.”

It is true that the trial court determined from the evidence that the plaintiff has been guilty of certain indiscretions with Mr. Ramie, however, it is quite clear from his written reasons that he did not consider that the evidence in this regard established that Mrs. Montgomery was morally unfit or that because of such indiscretions she could not provide a good and moral home for the children. In this connection the trial judge stated:

“The wife maintains that she has been guilty of no impropriety. The Court feels and finds to the contrary. However, that is not a definitive issue in custody, because the Supreme Court, as I have previously pointed out, has gone to great lengths where women have acted immorally, to give them the custody of small children.”

Although, I agree, that the record supports a finding that plaintiff’s relationship with Mr. Ramie, is clearly suggestive of impro-prietous and/or immoral conduct, I would not find that the evidence supports a clear and absolute determination that plaintiff engaged in adulterous conduct or that her conduct has had or is having an adverse effect upon the moral welfare of her children. In any event, the mere finding of an adulterous relationship by the trial court, without any evidence as to the circumstances thereof, does not as a matter of law, forfeit the mother’s right to custody. The jurisprudence is clear that a mother is fit to have custody of her children despite a finding of her engagement in an illicit relationship. Hudson v. Hudson, 295 So.2d 92 (La.App. 2nd Cir. 1974), writs refused, 295 So.2d 446; Jones v. Timber, 247 So.2d 207 (La.App. 1st Cir. 1971); Estopinal v. Estopinal, 223 La. 485, 66 So.2d 311 (1953); Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960).

Considering the tender age of the children and the trial court’s finding which determined the plaintiff to be a mother who had great love for her children and would provide well for them, I would conclude that the trial court committed patent error and abused the great discretion with which it is vested in awarding the custody of the children to the defendant father.

For the above and foregoing reasons I respectfully dissent.


author: REDMANN, Judge. GULOTTA, Judge

text:
    ANDREW DEVELOPMENT CORPORATION et al. v. WEST ESPLANADE CORPORATION.
    No. 7983.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Granted Feb. 11, 1977.

      M. Arnaud Pilie, Pilie, Pilie & Laiidry, New Orleans, for plaintiffs-appellants.
    Philippi P. St. Pee, Francipane, Regan & St. Pee, Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   REDMANN, Judge.

Plaintiff real estate agent appeals from a summary judgment dismissing its demand for commission against the owner of property on which plaintiff had a listing agreement and obtained a purchase agreement (from a co-plaintiff who has not appealed) which the principals did not perform.

The purchase agreement for $650,000 was conditioned on borrowing $6,500,000 (sic) with the property as security (and interim construction financing of $6,500,000), and it stipulated that the agent’s commission was earned “when the mortgage loan . is secured.” No mortgage loan was secured.

Plaintiff argues it would have been pointless to secure a loan commitment because the owner’s president had verbally refused to sell. This argument would be valid if the buyer had thereupon waived the loan condition, in which case the buyer could have enforced the principal contract and the agent could have demanded commission; but the buyer’s waiver would have obliged it to pay $650,000 cash for the property, if the seller had demanded performance of the contract after the condition was waived. The agent itself had no authority to waive the loan condition, but it could have secured the mortgage loan commitment, if it could find a lender to make the $6,500,000 loan.

Our view is that the showing that it is undisputed that the loan commitment condition was not met (or waived by the buyer) established that plaintiff is not entitled to a commission.

Affirmed.

GULOTTA, J., concurs.

GULOTTA, Judge

(concurring).

I concur with the result.

This is a suit for a real estate commission. The buy-and-sell agreement provides as follows:

“If this offer is accepted, seller agrees to pay the agent’s commission of $28,-000.00 which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.” (emphasis ours)

For whatever reasons, the loan has not been secured by purchaser. The commission has not been earned. Any question of the seller’s breach might affect the rights as between the buyer and seller under the contract, but this is not a suit by the purchaser against the seller or the seller against the purchaser. This is a claim by a real estate agent for the commission. Plaintiff’s entitlement to the commission, under the contract, becomes effective when the loan is secured. Since the loan was never secured, plaintiff is not entitled to the commission. For these reasons, I concur with the result dismissing by summary judgment the agent’s claim for his commission.

      . We ignore the question whether the alleged refusal by the seller to perform — alleged as avoiding the necessity of, and in that sense as an equivalent of, a putting in default — must be proven by evidence of equal dignity to that required to show a putting in default (which may be done verbally, but in the presence of two witnesses, C.C. 1911(2)); see Elliott v. Dupuy, 1961, 242 La. 173, 135 So.2d 54 (refusal in writing held equivalent to putting in default in writing); Schuler v. A. K. Roy, Inc., La.App. Orl.1953, 65 So.2d 333 (indefinite verbal refusal held not to obviate a putting in default).

      . Besides the putting in default problem, see n. 1, there is a problem with basic enforceability of the entire agreement. The $6,500,000 loan conditions (impossible to fulfill on naked land worth only $650,000) contemplate some medical complex construction project which is in no way identified. The seller could not have enforced the agreement by itself obtaining the $6,500,000 loans because it could not prove by any admissible evidence that the project on which the loans were obtainable was the project contemplated by the agreement. The buyer (who could waive the loan condition) could not enforce because of lack of mutuality of obligation. On this theory, neither buyer nor seller is bound despite the appearance that the seller is bound. The agent would not be owed a commission for obtaining a purchase agreement which could not be enforced.


author: REDMANN, Judge.

text:
    Clyde BEL, Sr., Constable, First City Court v. Nat GROS, Clerk of Court, First City Court.
    No. 7485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Refused Feb. 11, 1977.

      Roger B. Jacobs, New Orleans, for plaintiff-appellee.
    Sidney I. Goldman, New Orleans, for defendant-appellant.
   ON REHEARING

Before REDMANN, LEMMON and BOUTALL, JJ.

REDMANN, Judge.

The Clerk and the Constable of the First City Court differed in their interpretations of La.C.C.P. 1292. The Constable therefore applied to his court for a ruling. The court convened itself en banc and ruled that the Clerk should accept, as a “return” within C.C.P. 1292 (see also art. 1293) and therefore part of the record, the Constable’s physical return to the Clerk of any document given the Constable for service which the Constable annotates “unable to serve” or “not served.”

Because the Constable’s application for instructions was in the form of an ordinary petition and the court’s rule was titled “Judgment,” the Clerk has taken an appeal to this court, which has appellate jurisdiction over “cases” or “civil matters decided” in the First City Court, Const, art. 5 § 10.

We view the action of the First City Court en banc as an exercise of the court’s rule-making power, C.C.P. 193 and 4847, rather than as a judgment in a “case” or “civil matter” between Constable and Clerk. The judges of that court of first instance do not sit en banc to try the cases they hear. Indeed, that court’s jurisdiction only extends to limited money or movable property or eviction demands (and demands incidental thereto), C.C.P. 4835. If the Constable-Clerk disagreement can be litigated as an independent ease, it would have to be in the (civil) district court, where general trial jurisdiction lies. The Constable recognized the preferability of applying, instead, to his own court for a ruling, and that court recognized, by convening itself en banc, that the Constable’s petition was not a demand as in ordinary litigation.

Because the action appealed from is no more than the adoption of a court rule, it is not a “case” or “civil matter decided” within Const, art. 5 § 10 and it is therefore not reviewable as such by this court.

Appeal dismissed.