author: GUIDRY, Judge.

text:
    Herbert J. VERRET, Plaintiff-Appellee, v. CHOTIN TRANSPORTATION, INC., Defendant-Appellant.
    No. 6286.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.

      Ross, Griggs & Harrison by W. Garney Griggs, Houston, Tex., Codings & Codings by Robert W. Codings, Lake Charles, for defendant-appellant.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, Jones & Jones by Jerry G. Jones, Cameron, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   GUIDRY, Judge.

The instant suit arises as a result of a marine collision which occurred at approximately 1:30 a. m. on May 13, 1975 in the Gulf Intracoastal Waterway within Cameron Parish, Louisiana. On the date and time aforesaid the M/V JAKA L, owned and captained by plaintiff, was pushing ahead in a westerly direction one loaded barge in the vicinity of Ellender Bridge, Mile 244 West of the Gulf Intracoastal Waterway. At the same time the towboat M/V PAUL H. CHOTIN, owned and operated by defendant, was pushing ahead seven empty barges, proceeding westerly and behind the M/V JAKA L. The collision occurred just west of the Ellender Bridge when the lead barge of the defendant’s tow rammed into the rear or stern of the M/V JAKA L. As a result of the accident the M/V JAKA L sustained severe damage and plaintiff, Herbert J. Verret, was thrown from his bunk allegedly causing him serious personal injury. The suit was tried to a jury which returned a general verdict in favor of plaintiff for $202,700.00. Defendant appeals and assigns the following errors:

1. The trial court erred in allowing, over timely objection, the introduction of evidence with respect to the U. S. Coast Guard record of R. C. Anderson, pilot of the M/V PAUL H. CHOTIN.
2. The trial court erred in submitting the case to the jury on a general verdict and in failing to submit the case on special interrogatories.
3. The trial court erred in entering judgment in accordance with the damages awarded by the jury in that such damages are excessive and not supported by plaintiff’s pleadings.

At the outset and before proceeding to a disposition of the issues presented we observe that since this case arises under the general maritime law our scope of review is similar to that accorded the Federal Appellate Courts. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971); Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971) writ refused. Accordingly, we confine ourselves within those limits in examining the jury’s verdict and considering the issues presented.

ASSIGNMENT OF ERROR NUMBER 1

At trial of the instant matter the trial judge, over timely objection, allowed the introduction in evidence of a letter written by the U. S. Coast Guard to R. C. Anderson, pilot of the M/V PAUL H. CHOTIN, warning him in regards to certain alleged misconduct on his part which “resulted in collision of the lead vessel in your tow, B/T SNOOPY, O.N. 54001, with the westbound privileged vessel, M/V JAKA L, O.N. 266382.” The letter, a complete text of which is attached as APPENDIX Ij was then read to the jury. On appeal defendant contends that the admission of this letter in evidence constitutes reversible error. Plaintiff, on the other hand contends that the letter was properly admitted as impeachment evidence. We will quote from portions of the transcript in order to demonstrate how this disputed evidence found its way into the record. On direct examination R. C. Anderson was asked the following question by defense counsel:

“Q. Captain Anderson, do you have any licenses or documents issued by U. S. Coast Guard?
A. I have inland and western rivers, and Class A. tankerman, and pilot’s license.”

On cross-examination the following questions, answers and colloquy between counsel and the court ensued:

“Q. And you testified about your license that you hold in the Coast Guard, right?
A. Thats right.
Q. Do you have any blemishes on those licenses?
MR. GRIGGS: Objection, Your Honor. That has no relevance at all in this lawsuit.
MR. JONES: He is testifying as to his qualifications as a master of a tug, and he holds these licenses, and we are entitled to know everything about his licenses, whether he has got blemishes.
MR. GRIGGS: It has nothing at all to do with the qualifications of the man as an experienced mariner.
MR. JONES: It does.
MR. GRIGGS: As far as this case is concerned.
THE COURT: The objection will be overruled. He has testified he had the license. They may interrogate him as to the licenses.
Q. Do you have any blemishes on your licenses with the Coast Guard?
A. Not that I know of.
Q. I show you exhibit P-15, which is a letter addressed to R. C. Anderson, 3925 Clayton Street, Baton Rouge, Louisiana, pertaining to your licenses as an operator. Do you recognize that?
A. (No audible response.)
Q. Sir?
A. Yeah, I recognize it.
Q. What is it?
A. I had forgotten about it.
Q. What is this letter?
A. Its a letter from the Coast Guard saying that I failed to maintain a proper watch — proper lookout.
Q. And thats during this accident that we have in this lawsuit?
A. Its pertaining to this, yes.”

Subsequent to the above counsel for plaintiff offered to introduce the letter in evidence. The court accepted the offer permitting its introduction and allowed a reading of the letter to the jury ruling as follows with regard to defendant’s objection:

“THE COURT: Yes. It has been accepted for impeachment purposes. He had testified that there was no blemish on his record, and they have a right to show that.”

Although we entertain serious doubt as to the correctness of the trial court’s rulings which allowed the letter in question in evidence we find it unnecessary to make a categorical decision in this regard, for if error we conclude that the error, under the circumstances, was harmless. Since we entertained serious doubt as to the correctness of the trial court’s rulings and the possible prejudicial effect of this evidence on the jury’s finding of liability, we undertook an independent evaluation of the entire record. Temple v. Liberty Mutual Insurance Company, 330 So.2d 891 (La.1976); Carlton v. Great American Insurance Company, 340 So.2d 678 (La.App. 4th Cir. 1976), writ refused, La., 342 So.2d 1112. Our independent review of the evidence convinces us, as it did the trial judge, that the accident giving rise to this litigation was caused solely and proximately by the negligence of the defendant, Chotin Transportation, Inc. Consequently, if error, the error was harmless, for even if the jury verdict on the question of liability is denied the benefit of the “manifest error” presumption of correctness the same result is reached. For these reasons we find no merit in assignment of error one.

ASSIGNMENT OF ERROR NUMBER 2

We find no merit in this assignment of error. Whether a case will be submitted to a jury on special interrogatories or on a general verdict lies within the discretion of the trial judge. LSA-C.C.P. Articles 1811— 1812; Hocut v. Insurance Company of North America, supra. In the instant case we find no manifest abuse of that discretion.

ASSIGNMENT OF ERROR NUMBER 3

In his pleadings the plaintiff sought to recover the following damages:

a) Past, present and future physical and mental pain and suffering .$150,000.00
b) Past, present and future medical expenses . 25,000.00
c) Sums necessarily spent to repair his vessel . 30,000.00
d) Loss of use of his vessel .... 30,000,00
TOTAL $235,000.00”

At trial it was stipulated that past medical expenses amounted to the sum of $3,201.06 and plaintiff was only entitled to recover the insurance deductible, i. e., $2,500.00, with regard to expenses for repair of the JAKA L.

Appellant urges that the award is grossly excessive, however, in any event, considering the stipulations and alleged lack of proof with regard to future medical expenses, the award is erroneous because it is in excess of plaintiff’s prayer.

We approach a decision of the issue presented bearing in mind the scope of appellate review allowed in such cases. As is succinctly set forth in Trahan v. Gulf Crews, Inc., supra:

“State appellate review of jury awards under maritime law and the Jones Act is, as in the federal courts, ‘extremely limited.’ They must stand unless the appellate courts find there is no law and no evidence to sustain them, rendering them, as some courts have put it, so excessive as to be obviously punitive, motivated by prejudice, passion, partiality, or corruption. This is particularly true where the trial judge, finding the jury award is not excessive, has denied a new trial and/or remittitur. Naylor v. Isthmian S. S. Co., 2 Cir., 187 F.2d 538; Jenkins v. Associated Transport, Inc., 6 Cir., 330 F.2d 706; Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958; Volume 2 of Norris’s Treatise on ‘The Law of Seamen’ 429, (3rd Edition, 1970); and the authorities therein cited.”

Briefly, the record shows that plaintiff was 61 years old at the time of the accident and had a life expectancy of 15.4 years. As a result of the accident plaintiff suffered a ruptured disc at the L4-5 level and a preexisting arthritic condition in his back was severely aggravated. In addition, Mr. Ver-ret suffered an inguinal hernia which the medical evidence causally relates to the accident. The hernia was surgically repaired in May of 1976. Although his physician, Dr. Charles Borne, recommended surgery for removal of the disc plaintiff has thus far decided against further surgery. There is no doubt but that as of the time of trial plaintiff was totally disabled to perform work as a tug boat captain.

As a result of the collision the JAKA L was out of service for a period in excess of two months. After repair plaintiff was obliged because of his injuries to hire additional personnel to man and maintain the JAKA L. Plaintiff testified that the additional expenses incurred, labor problems etc., simply ran him out of business and he eventually was forced to sell his boat and retire.

Although appellant suggests that there is no proof with regard to future medical expenses the record does reflect that plaintiff may eventually be forced to undergo disc surgery. Additionally, the evidence reflects that plaintiff presently suffers from fainting spells which are causally related to his accidental injuries.

The total damages prayed for by plaintiff amount to the sum of $235,000.00. When this figure is reduced by virtue of the stipulation regarding actual amount expended for repairs, the pleadings support an award not to exceed $207,500.00. The jury rendered a general verdict in favor of plaintiff in the amount of $202,700.00. Considering the evidence adduced and this court’s limited scope of review in such matters the award must be affirmed.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

Appendix to follow.

      . In his written reasons denying defendant-appellant’s application for a new trial the trial judge stated:
      “The first thing that goes through my mind after we complete a jury trial is what would be the disposition of the situation if a motion for a new trial is filed. I attempt to, in my own mind, analyse the situation while it is fresh in my mind. In this case I felt at that time that the liability question as well as the quantum were supported by the evidence. (Emphasis ours)


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. Larry TERREBONNE and Miriam M. Terrebonne.
    No. 8766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Eugene D. Brierre, Brierre & Malone, New Orleans, for plaintiff-appellee.
    Santo A. Dileo, New Orleans, for defendants-appellants.
    Before REDMANN, BOUTALL and BEER, JJ.
   REDMANN, Judge.

Plaintiff sues as conventional subrogee on several claims arising from an automobile accident. From a judgment for $1,808.66 defendant appeals.

The evidence justifies the trial judge’s finding that defendant ran into the other automobile because, after looking to his right for a break in traffic, he did not look to his left when starting up from a stop in the median area of the Westbank Expressway in Jefferson Parish (the other automobile had meanwhile come half across the expressway towards the median into defendant’s path and he struck it on the rear fender).

The evidence also supports the conclusion that the other driver (one of plaintiff’s assignors) was not guilty of contributory negligence. She apparently stayed in her own southbound lane crossing the expressway, and had almost crossed the westbound lanes before defendant turned into her car. She violated no duty to defendant or to herself, because she had no reason to anticipate that defendant would turn left without looking.

The evidence does not justify a $100 award on the claim of Lisa Cheramie, then ten years old, because there is no evidence she was injured or even jostled. Her 15-year-old sister Pamela testified, said nothing of any injury or incommodity as a result of the “bump” to the car, and it was stipulated that Lisa’s testimony would be the same as Pamela’s. No other evidence affords a basis for any award for Lisa unless mere presence in an automobile modestly damaged in a minor accident entitles one to an award of $100 or so. We hold it does not.

The evidence also does not justify $1,000 for the claim of Doris B. Cheramie, who testified she hit her head on the windshield and side window, went to a doctor five days later (then three more times), had “pain and discomfort” for three or four months, and still had headaches at trial time. There was no medical evidence to justify a $1,000 award and it must be reduced, Allen v. Baucum, La.App., 4 Cir. 1969, 218 So.2d 662. We allow $500, see C.C: 2277, as maximum general damages for a non-visible and otherwise uncorroborated injury.

The testimony of Enis Cheramie that he (or plaintiff, his insurer) paid $71 medical and $692.66 automobile repair is sufficient to support the inclusion of those items in the judgment. The test is whether those items have been shown to be more probable than not, Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). Enis’s testimony is supported by the automobile repair estimate and contract and by a $71 medical bill introduced without objection. Enis testified that he spent another $45 on medical expense (and plaintiff’s sub-rogation recites $116 total); but Enis does not even explain what that $45 was for, and it must be held unproven.

The judgment is reduced to $1,163.66; costs of appeal are to be equally divided.


author: LEMMON, Judge.

text:
    Edgar NED, Sr. v. The HERTZ CORPORATION et al.
    No. 8874.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Wiedemann & Fransen, A. Remy Fran-sen, Jr., New Orleans, for plaintiff-appellee.
    Emile L. Turner, Jr. and Malcolm B. Robinson, Jr., New Orleans, for defendants-appellants.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   LEMMON, Judge.

This suit involves a single vehicle collision which occurred while plaintiff was driving a step van leased by defendant to plaintiff’s employer. The threshold issue on appeal is the sufficiency of the evidence that the accident was caused by a defect in the vehicle attributable to defendant’s negligence in its contractual obligation of maintenance and repair.

I

Plaintiff was employed as a fork lift operator and substitute truck driver. On the afternoon of the March 11,1974 accident he was assigned to drive a truck normally driven by another employee who had become ill during the day. Plaintiff had not driven this particular truck before.

Plaintiff testified that when he was on his first trip'he was traveling in a relatively rural area and, upon entering a more populated commercial area, he noted that he was driving about 30 miles per hour in a 25-mile zone and “touched” his brakes to slow down, whereupon the brakes grabbed and the steering wheel spun out of his hand, causing him to veer to the left across the opposite lane of the two-lane street and into a utility pole located past the curb. The truck caught fire, and the motor, dashboard and firewall area burned.

On March 4 and 5, 1974 defendant had performed a complete brake job, consisting of turning the brake drums, rebuilding the wheel cylinders, and replacing the brake shoes and some wheel bearings and seals. The vehicle was returned to service on March 6 and used thereafter in the normal course of business until the accident five days later.

The regular driver testified that on the morning of the accident he had applied the brakes while slowing to execute a turn, whereupon the brakes “grabbed” and “pulled” with such violence that the battery was knocked over, and that at the instruction of his supervisor he contacted defendant, whose mechanic went to the scene, changed the battery, and made a cursory cheek of the brakes by depressing the pedal. The driver further testified that the brakes on that truck had caused considerable problems before the repair work and that the problems still persisted after the work. Plaintiff was unaware of these problems.

Another driver for plaintiff’s employer testified that he had experienced severe pulling of the wheels of that truck upon brake application, stating that “the wheel would snatch out your hand”. While he could not state with certainty that this experience had occurred subsequent to defendant’s repair work, the employer’s records showed that he drove that truck on March 6.

An eyewitness to the accident, who resided in the neighborhood, was presented by defendant. She testified positively that the truck “wasn’t speeding”, but simply went out of control suddenly.

After the accident defendant was notified of the brake problem and had the vehicle inspected by its mechanics and by an independent mechanical expert whom defendant had consulted in prior incidents involving alleged defects. Significantly, the expert was available for trial but not produced.

Defendant did present its own mechanics who testified that they removed each wheel and checked for mechanical failure in the braking system and binding in the steering system; that there was no evidence of fluid leaking, of grease or oil on the shoes, of scarring of the shoes or the drums, or of cylinder locking; and that there was fluid all the way from the master cylinder to the four wheels. They opined that severe pulling to the side would not occur in the absence of evidence of mechanical failure.

After their inspection defendant recycled the brake parts and sold the vehicle.

II

On appeal defendant argues that plaintiff’s story is not plausible and further that causation attributable to brake failure was not proved, since there are other more plausible or equally plausible explanations for the occurrence.

Causation, like any other fact, may be proved by direct or circumstantial evidence. Plaintiff has the burden of proof, and the trial judge at the conclusion of the trial weighs a 11 the evidence and determines the preponderance. Proof by direct or circumstantial evidence constitutes a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

In the present case the evidence apparently found credible by the trial judge established that plaintiff was not speeding and that the brakes on the truck had “grabbed” violently earlier that day and possibly on other occasions since defendant’s repair work. On this evidence the trial judge could reasonably have concluded that the truck’s braking system was unreasonably unsafe and that the dangerous condition, of which plaintiff was unaware, caused the accident. While the record also contains other evidence which would furnish a reasonable basis for a contrary conclusion, we find no manifest error in the trial judge’s reaching the conclusion that he did.

We note that defendant’s evidence rebutting plaintiff’s prima facie case was eonsid-erably weakened by the unexplained failure to produce the independent expert who was called in to perform the post-accident inspection and the failure to preserve the evidence of this inspection. These failures, together with the testimony of the eyewitness (produced by defendant) that the truck was not speeding, substantially detract from the plausibility of other suggested causes of the accident.

Ill

Defendant also questions the amount of the judgment.

In the accident plaintiff’s principal injury was blunt abdominal trauma which caused severe kidney damage. The right kidney was surgically removed during the course of a 12-day hospitalization. After several outpatient visits plaintiff was evaluated in October, 1974 by a urologist, who found that the remaining kidney was functioning normally. The doctor opined that plaintiff had no significant urological disability and cautioned plaintiff to limit his activities only to exclude those which required physical contact.

Plaintiff testified that he was in substantial pain for five or six months after the accident and returned to gainful employment with another company in August, 1974. At the time of the accident he was earning $3.05 per hour and had worked for that employer for one and a half years. His hospital bill was $1,314.75.

The trial court awarded $50,000.00. While that amount seems very generous in view of the short period of medical treatment and uneventful recovery without significant disability, the loss of one kidney subjects plaintiff, who was 28 years old at time of trial, to the danger of losing his life if the remaining kidney is injured or becomes diseased. We cannot say on the basis of this record that the award was so excessive as to constitute an abuse of discretion.

The judgment is affirmed.

AFFIRMED.

      . Defendant’s mechanic didn’t recall any complaints about the brakes on that service call, and his worksheet did not contain a notation of such a complaint.

      . A plaintiff has successfully borne his burden when the evidence taken as a whole shows that the defendant’s negligence was the most plausible or likely cause of the occurrence and that no other factor can as reasonably be ascribed as the cause. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).


author: HALL, Judge.

text:
    Rosa Lee Harper HAMMONTREE et al., Plaintiffs-Appellees, v. Dessie Lee PATTERSON, Mayor of the Village of South Mansfield, et al., Defendants-Appellants.
    No. 13468.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    Hilry Huckaby, III, Shreveport, for defendants-appellants.
    Booth, Lockard, Jack, Pleasant & LeSage by Fred H. Sutherland, Shreveport, for plaintiffs-appellees.

      Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

The issue to be decided in this case is whether the mayor of a Lawrason Act village, after recall by election of all the aider-men of the village, has the power and authority to make appointments to fill the vacancies, or whether the governor of the state is the proper authority to make such appointments.

The three members of the Board of Aldermen of the Village of South Mansfield were recalled by election, pursuant to which the three offices were declared vacant by the Governor. LSA-R.S. 42:342, et seq. The mayor, Dessie Lee Patterson, appointed Minerva Wright to one of the vacancies. Together the Mayor and Wright appointed Arlmon Vanzant, Jr. to another vacancy and then the three joined to appoint Dorothy Dupuy to the remaining vacancy.

Plaintiffs, who are residents, taxpayers and electors of the Village, filed suit seeking an injunction and a writ of quo warran-to, challenging the authority of the Mayor, alone or in concert with the others, to make such appointments, and contending the vacancies should be filled by appointment by the Governor or by election. After trial, the district court ordered the writ made absolute, declared the appointments void, and issued an injunction against the Mayor and her appointees. All defendants appealed.

Defendants-appellants contend that in the absence of a board of aldermen, the mayor is the governing authority of the municipality and has the authority to make appointments to fill vacancies in the elected offices of the municipality under Art. 6, § 13 of the Louisiana Constitution of 1974, LSA-R.S. 33:1887, and other pertinent provisions of the Lawrason Act (LSA-R.S. 33:321, et seq.)

Plaintiffs-appellees contend that in the absence of a board of aldermen there is no governing authority of the municipality as contemplated by the provisions of the Constitution and statute relied on by defendants; hence, any appointments to fill the vacancies must be made by the governor in accordance with Art. 10, § 27 of the Louisiana Constitution of 1974.

The “governing authority” of a Lawrason Act municipality is the mayor and board of aldermen. LSA-R.S. 33:362 provides that the powers of the municipality “shall be exercised by the mayor and board of aider-men of the municipality.” Section 401 provides that the “mayor and board of aider-men of every municipality shall have the care, management, and control of the municipality and its property and finances.” Section 404 prescribes the duties of the mayor, who “shall have the superintending control of all offices and affairs of the municipality . . . ” The mayor shall preside at all meetings of the board of aldermen and has no vote except that when there is an equal division the mayor casts the deciding vote. Bierhorst v. Prieto, 131 So.2d 308 (La.App. 1st Cir. 1961); Bourgeois v. Moreau, 303 So.2d 817 (La.App. 4th Cir. 1974).

The mayor may exercise only that authority granted to him by the Legislature or incidental to or contingent upon some authorized undertaking. Chandler & Chandler v. City of Shreveport, 162 So. 437 (La. App. 2d Cir. 1935). Nowhere is the mayor empowered to act in place of the aldermen. United States Rubber Co. v. Town of Breaux Bridge, 165 So. 721 (La.App. 1st Cir. 1936).

There is no provision for carrying out the functions of the mayor and board of aider-men in any manner other than through the procedure of regular or special meetings as outlined in LSA-R.S. 33:405. Johnson v. Mayor and City Commission of City of Natchitoches, 129 So. 433 (La.App. 2d Cir. 1930). The provisions regulating special meetings provide for notice to the mayor and aldermen specifying in detail the objects and purposes of the meeting and further provide that a majority of the aider-men elected is required to constitute a quorum.

Defendants assert that since there were no elected aldermen the mayor alone could constitute the quorum. This argument must fall since there is no provision for the mayor to act alone at a “meeting”. A meeting requires the presence of aldermen and no business may be validly conducted without a majority of the aldermen being present. The governing authority contemplated by Art. 6, § 13 and LSA-R.S. 33:1887 A is one with authority to act. Less than a quorum of the aldermen or the mayor alone may not exercise powers vested in the governing authority under the explicit terms of LSA-R.S. 33:405. Where there are no aldermen, there is no legally constituted governing authority of a municipality. Any appointment made by the mayor alone is without authority and is without effect.

Art. 6, § 13 of the 1974 Constitution and LSA-R.S. 33:1887 A cannot be applied in this case because there is no legally constituted municipal governing authority to make the appointment. Art. 10, § 27 of the 1974 Constitution gives the governor authority to fill a vacancy in any elective office if “no other provision therefor is made by this constitution, by statute, by local government charter, by home rule charter or plan of government, or by ordinance.” There being no other provisions for filling vacancies in the office of aider-man where there are no aldermen holding office in a municipality and, therefore, no legally constituted municipal governing authority, the governor is the proper authority to make appointments to fill the vacancies.

The judgment of the district court is affirmed at appellants’ costs.

Affirmed.

      . Art. 6, § 13. Vacancies
      “Section 13. (A) Vacancy; Appointment. Except as otherwise provided by this constitution, a vacancy in any local office filled by election wholly within the boundaries of a local governmental subdivision or a school district shall be filled by appointment by the particular governing authority of the local governmental subdivision or school district in which the vacancy occurs, until it is filled by election as provided by law.
      “(B) Exception. This Section shall apply to each local governmental subdivision unless otherwise provided by its home rule charter or plan of government.”
      LSA-R.S. 33:1887. Vacancies in certain local and municipal offices; exceptions
      “A. When a vacancy occurs in the office of a member of a parish or municipal governing authority or a combination thereof, or in the office of mayor, or in any other local or municipal office, except an office covered by Subsections B and C hereof and except the office of judge or state legislator, and the office is filled by election wholly within the boundaries of a local governmental subdivision, the governing authority of the local governmental subdivision where the vacancy occurs shall appoint a person to fill the vacancy who meets the qualifications of the office. The presiding officer of the governing authority shall not be required to vote on such appointment to be made by the governing authority of a local governmental subdivision unless a tie vote occurs thereon, in which case he shall vote to break the tie; however, in no case shall the presiding officer vote more than once on the appointment.” LSA-R.S. 33:383. Municipal elections; term of office; filling vacancies; officers holding over under new form of government
      “A. Municipal elections shall be held every four years on the Tuesday next following the second Monday of June. The officers elected shall qualify and enter upon the discharge of their duties on the first day of July, after their election, and shall hold their office for four years.
      “B. If no election is held on the day herein prescribed, or if a vacancy in any municipal office, elective by the people, occurs, or if an officer elected fails to qualify, such vacancy shall be filled in accordance with the provisions of Section 69 of Article 7 of the Louisiana Constitution or as otherwise provided by law.
      “C. Any vacancy in a municipal office to which the officer is elected or appointed by the mayor and board of aldermen may be filled for the term by the mayor and board of aldermen at any regular or special meeting.
      “D. Officers of a municipality who are in office when the municipality elects to come under the provisions of this Part under R.S. 33:322, shall retain their offices until the first election under this section, with the powers of like offices under this Part.”

      . Art. 10, § 27. Filling of Vacancies
      “Section 27. (A) Gubernatorial Appointment; Election. If no other provision therefor is made by this constitution, by statute, by local government charter, by home rule charter or plan of government, or by ordinance, the governor may fill a vacancy occurring in any elective office. When a vacancy occurs in the office and the unexpired portion of the term exceeds one year, the vacancy shall be filled at an election, as provided by law, and the appointment shall be effective only until a successor takes office.
      “(B) Qualifications. Nothing in this Section shall change the qualifications for any office, and every appointee must be otherwise eligible to hold the office to which appointed.”


author: JONES, Judge.

text:
    Pearline CULBERT, as natural tutrix of Sharon Culbert, Plaintiff-Appellant, v. Succession of Augusta CULBERT, Defendant-Appellee.
    No. 13471.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    En Banc. Rehearing Denied April 4, 1978.
    C. William Gerhardt, Shreveport, for plaintiff-appellant.
    Joseph F. Giglio, III, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Sharon Renee Culbert, substituted plaintiff, appeals from a judgment rejecting her demands to be recognized as the legitimated child of Edward L. Culbert, now deceased, and as such his sole heir. Plaintiff seeks to declare null the “Judgment of Possession” rendered in the succession of her alleged father which recognized his mother, Augusta Culbert, as her father’s sole heir and owner of his property.

In finding plaintiff failed to prove acknowledgment by her father and therefore her legitimacy under C.C.Art. 198, the trial court relied upon two judicial proceedings in which plaintiff’s mother failed to take advantage of an opportunity to assert the paternity and legitimacy of her child. We-reverse.

Plaintiff was born August 18, 1958 to Pearline Culbert. Prior to her daughter’s birth, Pearline had been married once and then to John Bratton. During their marriage one daughter, Alvertha Bratton, was born. In 1957, Pearline and Bratton were divorced. Plaintiff was born more than one year after their divorce and therefore could not be presumed to be the child of that marriage.

After her divorce, Pearline became intimately acquainted with Edward L. Culbert, also a divorced. Pearline and Edward had sexual intercourse on numerous occasions and Pearline testified she had intercourse with no other man during the period when plaintiff was conceived. At the time of plaintiff’s conception and birth, neither Pearline nor Edward suffered any legal impediment which would prohibit their marriage. On September 4, 1961, three years after plaintiff’s birth, Pearline and Edward were married. Plaintiff and her half-sister, Alvertha, lived with their mother and Edward from this time until their mother and Edward separated in 1969.

At the time of plaintiff’s birth, her mother reported the daughter’s name on her birth certificate as “Sharon Bratton” because this was the surname being used by the mother at the time of Sharon’s birth. The mother continued to use the surname of her former husband following her divorce from him.

On June 4, 1963, the Louisiana State Board of Health, Division of Public Health Statistics (also known as Bureau of Vital Statistics) issued a new birth certificate which reflected plaintiff’s name as “Sharon Renee Culbert”, her mother as “Pearlean (sic) Coleman” and her father as “Edward L. Culbert”. The certificate was signed by Edward L. Culbert on May 29, 1963. At trial, Pearline testified that prior to obtaining the new certificate, Edward and Pear-line met with an attorney and signed affidavits acknowledging plaintiff as Edward’s daughter which were sent to the Bureau to obtain the new certificate.

In October, 1967, decedent, Edward, applied for social security disability benefits and listed Sharon Renee Culbert and Alver-tha Bratton as -dependent children for whom he could claim benefits. This application was signed by Edward.

On March 4, 1970, Edward was granted an uncontested separation from Pearline by default judgment. The petition alleged “no children were born of the marriage”. In July, 1970, Pearline filed criminal neglect proceedings against Edward in Juvenile Court alleging his nonsupport of Sharon Culbert and Alvertha Bratton. These proceedings were subsequently dismissed and the minutes of the Juvenile Court record reflect “Plaintiff (i. e., Pearline) admits that the children are not children of defendant (i. e., Edward)” (explanation added). At trial of plaintiff’s suit, Pearline admitted making such a statement to the Juvenile Judge but denied it was true. She said she only made the statement because of a feeling of futility when she was opposed in the proceedings by Edward, his girl friend and his mother.

Edward died September 19, 1970, and his mother, Augusta Culbert, opened his succession alleging “no children were born of her son’s marriage to Pearline” and that she was Edward’s sole heir. A judgment of possession in this proceeding recognized Augusta as owner of Edward’s estate.

In August, 1974, Augusta died leaving a will which left her estate to the acknowledged illegitimate children of Edward, Henry Brown and Eddie Lee Jelks. Decedent appointed Eddie Lee Jelks as executor of her estate.

On September 23,1975, this suit was filed against the Succession of Augusta Culbert, her legatees and the executor.

The issue on appeal is whether Sharon Lee Culbert is the legitimated child of Edward L. Culbert under the provisions of Civil Code Art. 198. Defendant contends Edward never acknowledged plaintiff either formally or informally. Civil Code Art. 198 provides:

“Children born out of marriage, except those who are born from an incestuous connection, are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them for their children, either before or after the marriage.”

Plaintiff, although illegitimate at the time of birth, was capable of being legitimated by the subsequent marriage of her parents because she was not born of an incestuous connection.

Defendants do not contest the marriage of Pearline and Edward. Thus this required element of legitimation under Art. 198 is met leaving for decision whether Edward formally or informally acknowledged plaintiff as his daughter.

The trial court gave the following reasons for rejecting plaintiff’s demands:

“As stated earlier, Pearline Culbert acknowledged during this trial that she made such an admission to Judge Taylor. We consider this evidence to be disposi-tive of the issues in this case. While there is evidence which certainly tends to support plaintiff’s claims, including an amended birth certificate as well as an application for Social Security benefits, we believe it may be properly contended that these documents do not convincingly demonstrate a clear acknowledgment of paternity of Sharon Culbert by Edward Culbert following his marriage to Pear-line Culbert. For example, counsel for defendant points out that we do not have the benefit of the circumstances surrounding the application for the amended birth certificate which brought about a change in Sharon’s name from Bratton to Culbert. By the same token, the application for Social Security benefits listed Alvertha as well as Sharon and it is noted that both of these children were living with Pearline and Edward at the time of the application and that the form calls for the names of these children, including natural children, adopted children and step-children who may be eligible for benefits under Social Security regulations. The lay testimony was of no great help as it was contradictory.
“Pearline Culbert had two earlier opportunities to appear in a Court of law and to assert her claim that Edward was Sharon’s father and that she had been duly acknowledged by him following their marriage, there being no legal impediment existing at the time Sharon was conceived. It might be argued that in the separation proceeding Edward alleged “that no children were born of this marriage” and that this was a true statement because the child was conceived pri- or to the marriage. However, the subsequent appearance by Pearline in the Juvenile Court proceeding in which she informed Judge Taylor that Edward Cul-bert was not the father is clear and convincing to this court. . . ”

LSA-R.S. 40:45 provides the birth certificate of a child who has been legitimated by her parents’ subsequent marriage can be changed and reissued to reflect the legitimation upon presentation to the state registrar of a statement by the husband acknowledging paternity and a certified copy of the parents’ marriage certificate.

A certified copy of plaintiff’s legitimated certificate was introduced into evidence. The trial judge gave as one of his reasons for rejecting plaintiff’s claim the failure of plaintiff to offer the document of acknowledgment supporting this legitimated certificate. The fact that the Bureau of Vital Statistics issued the altered certificate creates a presumption it had received the acknowledgment which was necessary to justify issuance of the certificate. State v. City of New Orleans, 78 So.2d 855 (La.App., Orl.1955). This factor along with testimony of plaintiff’s mother concerning execution of the acknowledgment may be sufficient to establish plaintiff’s acknowledgment by her father. Plaintiff, however, is not relegated to reliance on this presumption and testimony of her mother to establish her acknowledgment because the certificate signed by her father reflects Edward L. Culbert as father of plaintiff. The signed certificate from in and of itself constitutes an acknowledgment of paternity because reflected on the face of this certificate is the showing that Edward L. Culbert is the father of the child. Adjacent to his signature is the following language:

“I certify that the above stated information is true and correct to the best of my knowledge.”

This acknowledgment subsequent to the marriage of plaintiff’s mother and father legitimates plaintiff within the provisions of C.C.Art. 198.

Plaintiff continuously lived with Pearline and Edward for eight years during which time she was acknowledged by Edward among family and friends to be his daughter. At least from May, 1963 to the present, plaintiff used Edward’s surname “Culbert”. In the disability application prepared and signed by Edward, he named Sharon Renee Culbert as one of his children. This evidence further establishes the intention of Edward to acknowledge and legitimate his daughter when he signed the legitimated birth certificate on May 29, 1963.

Art. 199 of the Civil Code provides:

“Children legitimated by a subsequent marriage have the same rights as if they were born during marriage.”

In Tate v. Penne, 7 Mart. (N.S.) 548, (1829) the well-established principle was recognized that “a child born during the marriage cannot have its condition affected by the declaration of one or both of spouses.”

In Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952), a mother who filed a birth certificate for her baby showing her husband to be the father of her child, testified another man was in fact the father. The court rejected her testimony, followed the rationale of Tate and held she could not bastardize her child by testifying to facts indicating the biological father was one other than her husband.

When plaintiff was legitimated on May 29, 1963, she became entitled to rights of a child born of the marriage and no subsequent declarations by her parents could have the effect of retracting her legitimation.

The trial court erred in relying on Edward’s judicial declarations in the separation and nonsupport proceedings denying Sharon’s paternity and on Pearline’s statement made to the Juvenile Judge. These statements could not deprive plaintiff of her legitimated status acquired more than six years earlier.

We reverse and render judgment in favor of plaintiff, Sharon Renee Culbert, recognizing her as the legitimated child of Edward Lee Culbert. We annul the judgment of possession rendered in Succession of Edward L. Culbert, No. 201,026, Caddo Parish, Louisiana, in which Augusta Culbert was recognized as heir and owner of Edward L. Culbert’s estate. We recognize Sharon Renee Culbert as sole heir of Edward L. Cul-bert. She is recognized as owner and sent into possession of the following described property:

Lot 14 of the Brimmer & Moore Subdivision, City of Shreveport, Caddo Parish, Louisiana, as per plat of said subdivision recorded in Book 41, page 339 of the Conveyance Records of Caddo Parish, Louisiana, together with all buildings and improvements thereon and known as municipal number 2755 Milam Street.

Costs below and on appeal are assessed against defendants-appellees.

      . § 45. Legitimation
      “If any child is legitimated by subsequent marriage of its parents, the state registrar, upon receipt of a certified copy of the marriage certificate of the parents and a statement of the husband acknowledging paternity, shall prepare a new certificate of birth in the new name of the legitimated child.
      “The original birth certificate and the evidence upon which the new certificate was made shall be sealed and filed and may be opened only upon the order of a court of record.”


author: BOLIN, Judge.

text:
    Succession of Willard H. KILPATRICK. The BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES of the State of Louisiana and the Board of Supervisors of Louisiana State University, the First National Bank of Shreveport, Plaintiffs-Appellants, v. Arnold R. KILPATRICK et al., Defendants-Appellees.
    No. 13472.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    En Banc. Rehearing Denied April 4, 1978.
    Writ Refused June 2, 1978.

      Campbell, Campbell & Johnson by James M. Johnson, Minden, for Bd. of Trustees and Bd. of Supervisors, plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for plaintiff-appellant, First National Bank of Shreveport.
    Baker, Culpepper & Brunson by William H. Baker, Jonesboro, for defendants-appel-lees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

From a judgment sustaining exceptions of no right and no cause of action to their petition to annul a probated testament of Willard H. Kilpatrick, plaintiffs appeal. We reverse in part and remand.

The Succession of Willard H. Kilpatrick was opened on February 8, 1977, and the contested will dated January 16, 1977 was filed and probated ex parte by the two executors named in that will.

Less than three months later plaintiffs filed this action against the two executors and the universal legatee under the probated will, asking the court to annul that will and set aside the order probating it. Additionally, plaintiffs sought judgment: (1) recognizing an earlier testament dated September 16, 1976 to be the last testament of decedent; (2) admitting that will to probate and ordering same to be executed.

Plaintiffs are The First National Bank of Shreveport, named executor of the 1976 will and trustee of the trust established in that will; the Board of Trustees for State Colleges and Universities of the State of Louisiana; and the Board of Supervisors of Louisiana State University, the latter two representing universities named in the testamentary trust established in the 1976 will.

The basis for plaintiffs’ cause of action for nullity of the 1977 will is that on the date it was confected the decedent was hospitalized with terminal cancer; that he lacked the physical and mental capacity to make a will; that the will, which purported to be a nuncupative will by private act, was not confected in accordance with law. It is readily apparent from reading the petition that plaintiffs have stated a cause of action for nullity.

Defendants’ exception of no right of action is based on the premise that plaintiffs have no real or actual interest in the proceeding since they are not “heirs” or beneficiaries under the 1976 will; that they must prove they would inherit from decedent if the 1977 will is successfully attacked.

The two contentions may be consolidated into one principal issue: do plaintiffs have a justiciable interest under Louisiana Code of Civil Procedure Article 2972?

An opposition to the petition, motion, or other application of a party to a succession proceeding for an order or judgment of the court shall be in writing and be filed within the delay allowed. It shall comply with the provisions of Articles 853 through 863; shall state the name, surname, and domicile of the opponent; shall allege the interest of opponent in filing the opposition, and the grounds for opposing the petition, motion, or other application; and shall conclude with a prayer for appropriate relief.
* * * * * *
Official Revision Comments
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(b) No person should be permitted to file an opposition in a succession proceeding unless he has a justiciable interest in doing so. The definition of this interest has been left for the determination of the courts, and the requirement has been stated only implicitly in the term “interested person.” (Emphasis supplied)

The First National Bank of Shreveport claims its “justiciable interest” or right of action to annul is based upon its having been named decedent’s executor and trustee in the 1976 will. As executor of the estate under that will, the bank would have an actual pecuniary interest (its fee) in its probate. La. C.C.P. Arts. 3033 and 3351. In Succession of Pope, 230 La. 1049, 89 So.2d 894 (1956), the court held that an attorney, named as attorney for the succession in a will which he claimed to be the last valid will left by decedent, had a real interest (his fee) in having the earlier will probated and hence a real interest in assailing the validity of the later will.

In the 1976 will decedent, after making certain specific bequests to his wife and to various churches, bequeathed the remainder of his estate to the First National Bank as trustee for a trust established in the will. Under a similar factual situation the court in Succession of Hines, 341 So.2d 42 (La. App. 3d Cir., 1976), held that the title to property in trust was transferred from the settlor to the trustee under La. R.S. 9:1781. Under this rationale First National, as trustee, is the universal legatee with a real interest in establishing the validity of the 1976 will. Additionally, under the Trust Code a trustee is entitled to reasonable compensation from the trust estate for his services as trustee (La. R.S. 9:2181); therefore, First National Bank, as trustee, has a pecuniary interest similar to that of the attorney in the Pope Succession.

We conclude the pleadings and documents establish The First National Bank of Shreveport, both as executor and as trustee, has a justiciable interest in this action to annul the 1977 will, and in having the 1976 will recognized and probated.

Insofar as the two boards are concerned, we find the 1976 will makes no reference nor bequest to them which might be construed as making them beneficiaries. To the contrary, the will provides for the creation of a foundation to be governed by an advisory board. This foundation would have the authority to award scholarships and loans to worthy students eligible to attend one of the universities named in the will. While the universities have an interest in the award of scholarships to its students, this ultimate benefit is too remote to afford plaintiff boards a right of action to revoke the 1977 will. Our decision on this point is influenced to some extent by our holding that the First National Bank has such a right which renders the question of the boards’ right of action academic.

The judgment sustaining the exceptions against The First National Bank of Shreveport is reversed and the case is remanded for further proceedings; in all other respects the judgment is affirmed. Defendants are cast for costs of this appeal; assessment of all other costs is to await the termination of the cause.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. R. C. ANDERSON, Defendant-Appellee.
    No. 13474.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Gahagan and Gahagan by Russell E. Ga-hagan, Natchitoches, for defendant-appel-lee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

This appeal arises out of an expropriation pursuant to LSA-R.S. 48:441 et seq. The Department of Highways expropriated 1.593 acres of a 4.493 acre tract owned by defendant for construction of Inner Loop Expressway, for the widening and improvement of Linwood Avenue and for widening and improvement of Idema Street. The lower court awarded defendant $27,100 for the property taken and $7,500 for severance damages to the remainder. The Department appeals complaining of the severance damage award and defendant answers seeking an increase in both awards. We affirm.

The estimates of value of property taken given by the three appraisers who testified are remarkably similar. One of the state’s appraisers estimated the value at $25,500; another estimated it at $27,100, and defendant’s appraiser estimated its value at $27,-756. Defendant advanced no serious arguments of error on the part of the trial judge to justify an increase in the award for the property taken. The only issue remaining is severance damages.

Prior to the taking defendant owned a rectangular tract of land fronting 300 feet on the north side on Inner Loop Parkway (a two-lane, east-west asphalt road connecting Linwood and St. Vincent), fronting 614 feet on the west side on Linwood Avenue (a two-lane, major north-south thoroughfare) and fronting 300 feet on the south side on Idema Street (a short two-lane, dead end, oil/dirt surfaced road which provided access to Linwood Ave. for a few residences and trailer homes east of the subject property). The highest and best use of this vacant, unimproved tract is for commercial development.

After construction is completed, defendant’s property will be located in the southeast quadrant of the Linwood Avenue — Inner Loop Expressway interchange. Idema Street will be widenéd, hard-surfaced and extended to serve as the eastwest artery between Linwood and St. Vincent, replacing Inner Loop Parkway which is now incorporated in the expressway.

Severance damages are an award made to the owner to compensate him for decrease in value of the remainder of his property due to partial taking and are defined as the difference between the value of the remaining property before and after the taking. State, Department of Highways v. Denham Springs Development Company, Inc., 307 So.2d 304 (La.1975); State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973).

Defendant’s expert, O. L. Jordan, found the remainder sustained damages of 33V3% of the value of the remainder which was determined by deducting the value of the property taken from the value of the total tract prior to taking. He valued the remainder at $50,530, which is slightly in excess of $17,000 an acre, and found severance damages to be $16,844. The reasons given by Jordan for the percentage of diminution in value of the remainder were: (1) a reduction in size of the tract from 4.493 acres to 2.9 acres, or a reduction in plottage of 35.45%; (2) the change in shape of the property from a near rectangular tract to an irregularly shaped tract and (3) the extensive loss of access.

This expert stated the smaller, irregularly shaped area is far less desirable for commercial development than the subject property prior to taking. The loss of access is a result of the taking by the controlled access facilities. The previously existing 300 foot access along the north end of the property has been totally eliminated and the 614 foot access previously existing on the west side has been reduced to 246 feet on the southern end of the remainder. There was a concrete barrier constructed in the center of Linwood which has the effect of creating a boulevard out of Linwood. Southbound traffic on Linwood is further limited in access by an additional 70 feet because the barrier obstruction makes it impossible for traffic to turn left across Linwood into the remainder of the property until it reaches a point 176 feet north of the southwest corner of the remainder. The expert opined this extensive reduction of access on the remainder substantially decreased its desirability for commercial development.

It was developed at trial defendant’s expert was unaware the narrow, unimproved Idema Street was included in the overall highway improvement program in connection with the Inner Loop Expressway. The trial judge noted this oversight on the part of defendant’s expert in connection with Jordan’s determination of severance damages. The trial court believed the property sustained severance damages primarily because of the loss of access and found the amount of those damages was $7,500, rather than the amount determined by Jordan. The amount of the trial court’s award was 15% of the after-taking value as established by Jordan.

Plaintiff’s experts in their appraisals found the value of defendant’s remainder subsequent to the taking to be worth more than it was prior to the taking, and for this reason concluded plaintiff suffered no severance damages. Plaintiff contends the opinion of Jordan should be disregarded because it was based upon a percentage estimate not supported by comparables. Plaintiff contends the opinion of its experts based upon comparable “after taking” sales established there was no severance damages.

We find the comparables relied upon by plaintiff’s experts not convincing or persuasive as to the “after taking” value of defendant’s property. One of the compara-bles used by plaintiff’s experts involved a .537 acre tract sold in April, 1975 for $39,478. The purchaser of this small tract owned a business across the street from the comparable and was very anxious to buy it. Under these circumstances this sale has relatively little value as a comparable. The remaining two comparables relied on by plaintiff’s experts consisted of sales which occurred in 1976, more than three years following the taking.

None of the three comparables relied upon by these experts had any legal limitation of access. There was a weak effort on the part of these appraisers to establish a physical limitation of access caused by a ditch and bridge on one of the comparables used. They gave no indication as to the extent of physical access limitation nor offered any explanation of the cost of its removable.

The sales price on one of the 1976 compa-rables reflects an acreage value of $18,096, and when the appraiser adjusted it for the time lapse between the taking and the sale, it reflected an indicative acreage value of subject property of $14,118. With this adjustment and no more this comparable would have supported a severance award in excess of that allowed by the trial court. However, the appraiser applied a 50% upward adjustment because he stated the comparable was located in an inferior location and found the comparable reflected an indicated acreage value of the subject property of $21,000.

The sales price of the second 1976 comparable reflects an acreage value of $18,719 and when adjusted by the appraiser for the time factor, reflected an acreage value of $13,196 as indicative value of the subject property. With this adjustment and no more this comparable would support a severance award greater than that allowed by the trial court. The appraiser again applied a 50% upward adjustment for the comparable’s inferior location and found it reflected an indicated acreage value on the remainder of $23,100. The other state appraiser who used this comparable reached almost identical results.

Both 1976 comparables are corner locations in the proximity of the Inner Loop Expressway and have no limitation of access other than one of them has the ditch and bridge above mentioned. For these reasons there is a substantial question as to whether these two locations could be said to be inferior to the location of the subject property.

The appraisal technique of adjusting upwards the value of the comparable by 50% based upon the superior location of the property constitutes a determination that subject property has received a special benefit by being located in the quadrant. It is only a special benefit that plaintiff is entitled to use as an offset against defendant’s damages suffered by loss of access. Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654 (1941); State, Department of Highways v. Westport Development Company, Inc., 332 So.2d 918 (La.App., 2d Cir. 1976). Plaintiff has the burden of establishing defendant’s property has received a special benefit. Louisiana Highway Commission v. Grey.

The fact alone that a remainder is within the quadrant of an interchange does not establish its value has been substantially increased because of its peculiar location following the taking. While its value may have increased by being in the proximity of the interchange, this increase does not necessarily differ from the increase in value of other locations in the vicinity of the interchange. This type of increase in value is a general benefit which cannot be offset against damages for loss of access. State, Department of Highways v. Westport Development Company, Inc.

For the subject property to be designated a superior location and recipient of a special benefit, the evidence must establish that with regard to the following factors it is superior:

“ * * * [T]he volume of traffic, both from the Interstate and from the cross-highway; the position of the remainder with regard to being the most available for motorists leaving the expressway; the visibility of the property to expressway motorists before they reach the exit ramp; readiness of access to and from the expressway and the entrance ramp; the location of the interchange with regard to population centers; and competing sites available at the same or nearby interchanges.”
State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App., 3d Cir. 1969) at page 843.

The evidence in this record does not establish the subject property’s superiority. Under the circumstances plaintiff’s appraisers were not justified in applying a 50% upward adjustment on their compara-bles because of an alleged superior location of the subject property. We cannot find the trial judge committed manifest error in disregarding the appraisals of plaintiff’s experts.

Common sense supports defendant’s expert’s opinion that a smaller, irregularly shaped piece of commercial property with limited access to public roads is worth less than it was when part of a larger, regularly shaped tract with full access to public streets along the complete length of the north, west and south boundaries. A determination of diminution in value based upon a percentage of the remainder is an acceptable appraisal practice. City of Lafayette v. Babineaux, 297 So.2d 220 (La.App., 3d Cir. 1974); State, Department of Highways v. Tyler, 326 So.2d 349 (La.1976); State of Louisiana, Department of Highways v. Bland, 355 So.2d 283 (La.App., 2d Cir. 1977).

Because of the failure of defendant’s expert to consider the substantial improvement in the quality of access on Idema Street, the trial court reduced the percentage of diminution in value from 33V3% to 15%.' This finding which is supported by the evidence is within the discretion of the trial judge. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Affirmed.

      . Prior to making the 50% upward adjustment for inferior location, the appraiser made a 25% upward adjustment for inferior topography on the comparable. We observe the second appraiser obtained almost the identical indicative after value acreage of the subject property by use of this comparable without the adjustment for inferior topography.


text:
    MOUNT OLIVE BANK, Plaintiff-Appellee, v. JACKSON AIR TAXI, INC., Defendant-Appellant.
    No. 13477.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    En Banc. Rehearing Denied April 4, 1978.
    Writ Refused June 2, 1978.

      Hamilton, Carroll and Miller by Donald Carroll, Oak Grove, for appellant, Jackson Air Taxi, Inc., and for intervenor Southside, Inc.
    Hayes, Harkey, Smith and Cascio by Louis D. Smith, Monroe, for appellee, Mount Olive Bank.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant, Jackson Air Taxi, Inc. (hereafter “Air Taxi”) and intervenor, Southside, Inc., appeal a judgment against Air Taxi on a promissory note executed by its president and directors payable to plaintiff. The trial court ordered enforcement of plaintiff’s lien acquired by writ of nonresident attachment on the corporation’s aircraft, a Beech Baron, and rejected appellants’ demands for dissolution of the writ and damages. We affirm.

On January 16, 1974, Thomas Dunham, Charles Elliott and Charles Shamburger purchased one N315G Beech Baron B-55 aircraft. On August 21, 1974, Dunham and Shamburger as incorporators executed before a notary public articles of incorporation for defendant corporation, Jackson Air Taxi, Inc. These articles reflected Dun-ham, Elliott and Shamburger as its board of directors.

On August 23rd, two days after execution of the articles, Dunham and Elliott met the vice president of Mount Olive Bank, to refinance in the name of the corporation a previously executed $28,000 note of director Elliott. These corporate directors had earlier obtained from plaintiff a blank note on which was secured Shamburger’s signature.

At the time of execution Dunham and Elliott represented themselves as president and director, respectively. They stated this transaction was related to the acquisition of an airplane by Air Taxi and they gave the bank officer a copy of Air Taxi’s articles of incorporation with the original signatures of incorporators thereon.

Relying upon Dunham and Elliott’s representations of corporate existence and their authority, plaintiff’s officer had his secretary prepare the promissory note in the amount of $28,005 plus interest and attorney’s fees. The note, although executed on August 23rd, was backdated to May 4th. to include unpaid interest on Elliott’s past due note. In accordance with plaintiff’s normal banking practices, it placed the name of the corporate maker (Jackson Air Taxi, Inc.) in the upper left hand corner of the note. The note was signed by Dunham and Elliott in the lower right corner adjacent to the signature of Shamburger. The corporate note was endorsed by Dunham and Elliott on the back.

At this same meeting Dunham and Elliott instructed plaintiff the corporation’s Beech Baron would be used as security for the loan and gave the bank an accurate description of the plane which was included in the security agreement. This agreement on the airplane was improperly prepared and plaintiff does not assert a security interest. On August 28th, five days after Dunham, Elliott and Shamburger signed the note on behalf of the corporation, the Mississippi Secretary of State issued the certificate of incorporation for Jackson Air Taxi, Inc.

In November, 1974, Elliott, Dunham and Shamburger formally transferred by bill of sale the title of the Beech Baron aircraft to the corporation.

Defendant Air Taxi and plaintiff Mt. Olive along with other parties have been litigants in several court proceedings in Mississippi which involved corporate and individual notes and ownership of the Beech Baron. On March 22, 1977 a Mississippi court rendered judgment declaring Air Taxi the owner of the Beech Baron. This same day Dunham hired a pilot and flew the plane out of Mississippi to Tallulah, Louisiana. The following day Dunham as president of the corporation executed in Mississippi a bill of sale of the plane to Southside, Inc.

On March 24th Mount Olive filed this suit against defendant, a nonresident Mississippi corporation, acquiring jurisdiction by a nonresident attachment on this plane located in Tallulah.

Defendant and intervenor contend plaintiff’s suit “in rem” fails because plaintiff’s petition does not contain an allegation that the seized airplane was owned by Air Taxi. Although plaintiff does not allege in article's of the petition defendant’s ownership, plaintiff does set forth in its prayer an allegation of defendant’s ownership of the plane. The allegations in the articles and prayer together comprise the verified petition. Recognizing the harshness of a writ of attachment and need for specific allegations in pleading, we find under these circumstances plaintiff’s verified petition adequately alleges defendant’s ownership of the plane.

At trial the parties stipulated jurisdiction over defendant is “in rem”. We note the defendant by reconventional demand for damages and attorney’s fees has submitted itself personally to the jurisdiction of the court. In the absence of the “in rem” stipulation, the judgment rendered herein could have been a personal judgment. '

Defendant further contends the trial court erred in overruling an exception of lis pendens based upon existing Mississippi litigation. A review of the cause of action in the Mississippi suit establishes it to be dissimilar to the one here. That suit also includes numerous defendants not here named. For these reasons the trial court properly denied the exception of lis pen-dens. C.C.P. Art. 531.

Defendant contends the note sued upon was extinguished by payment when the bank allegedly accepted a personal note from defendant’s president, Dunham. While evidence surrounding receipt of Dun-ham’s personal note is scant, there is no evidence plaintiff accepted same in payment of the note sued upon.

Appellants contend a motion for a new trial filed in the Mississippi proceedings wherein defendant acquired the March 22nd judgment recognizing it as owner of the Beech Baron, was denied because defendant asserted the plane had been sold. Appellants urge the judgment in these proceedings denying a motion for a new trial establishes the validity of the sale to South-side.

A review of the judgment dismissing the motion for a new trial reflects the dismissal was based upon the grounds that defendant in the suit, Robert E. Whiting, had moved for its dismissal. Under these circumstances this judgment cannot be construed to be a judicial determination of ownership of the aircraft and binding upon Mt. Olive Bank who was not a party to the motion to dismiss the motion for a new trial.

Defendant and intervenor assert the note dated May 4, 1974, cannot be an obligation of defendant because the corporate existence did not commence until August 28, 1974. Appellants contend parole evidence is inadmissible to show the note was executed on a date other than the date shown on the face of the note. Parole evidence is admissible between parties to establish the date of execution of the note is erroneous. Russell v. Armington, 162 So.2d 91 (La.App., 4th Cir. 1964). The purpose of parole evidence here is not to alter or change any terms of the note but rather to establish this note was executed by a defacto corporation.

Plaintiff established by testimony of its president and vice president the note was executed August 23, 1974; it bore the date of May 4 so that interest on the note would commence on that date instead of August 23; and commencement of interest on May 4 was necessary to consummate the transaction in the manner desired by the corporate officers and endorsers of the note. Their testimony was corroborated by the bank secretary who prepared the note and by another bank employee responsible for bank records.

The bank maintained a microfilm system where all notes were pictured at the end of each banking day. The note on which plaintiff sued which bore the date of May 4th was included in the microfilm work of August 23 with numerous other bank notes bearing date of August 23. The bank registry which reflects the date of receipt of customers’ notes established defendant’s note was included within the bank’s loans for August 23.

The evidence supports the trial judge’s finding that the note was made August 23, 1974 rather than May 4. The issue now presented is whether defendant was a de-facto corporation on the date the note was executed.

In the decision of Allen v. Thompson, 248 Miss. 544, 158 So.2d 503 (1963) the Supreme Court recognized the following criteria for a defacto corporation: (1) a valid law under which a corporation with powers assumed might be incorporated; (2) a bona fide attempt to organize a corporation under such law; and (3) an actual exercise of corporate powers.

Defendant’s articles of incorporation were signed and notarized for the purpose of organizing a corporation under the Mississippi Business Corporations Act on August 21. There is evidence the articles of incorporation were forwarded by defendant’s attorney to the Mississippi Secretary of State’s office prior to August 28th, but were returned unrecorded to the attorney because of his failure to include within the transmittal a duplicate original of the articles which was required. These acts constitute bona fide attempts to organize under valid Mississippi law. The action of defendant’s president and all members of the board of directors and incorporators in executing the note on August 23rd, two days following execution of articles of incorporation, was an exercise of corporate powers.

The decision of Allen v. Thompson, supra, recognizing a defacto corporation exists in Mississippi prior to recordation of the charter, was cited with approval in the more recent Mississippi Supreme Court decision of In Re: Estate of Hardin, 218 So.2d 889 (Miss.1969). The Mississippi law and evidence in this case supports the finding of the trial judge that defendant’s note, executed prior to issuance of the certificate of incorporation, is a valid obligation of defendant corporation because it was a defac-to corporation at the time the note was signed.

Appellants contend the trial court was in error in holding the aircraft seized was the property of Air Taxi for the reason defendant had sold the plane to intervenor the day before the seizure.

Louisiana law provides that in a contract of sale it is essential the price be certain, fixed and determined between the parties. C.C. Arts. 1764, 2439, and 2464. Wise v. Guthrie, 11 La.Ann. 91; Prude v. Morris, 38 La.Ann. 767; Pulford v. Dimmick, 107 La. 403, 31 So. 879; Patton’s Heirs v. Moseley, 186 La. 1088, 173 So. 772 (1937).

Mississippi law also requires as an essential element of a valid sale that the price be either expressly fixed or definitely ascertainable. Gordon v. Fechtel, 220 Miss. 722, 71 So.2d 769 (1954). See also Godehaux Sugars, Inc. v. Fink, 188 Miss. 531, 195 So. 318 (1940).

From the evidence it appears the price for the airplane could have ranged from a figure slightly in excess of $20,000 to a sum in excess of $32,500. The evidence reflects this consideration could have been paid by any one or more of the following methods: (1) all cash; or (2) no cash; or (3)(a) by cancellation of a personal debt owed Dun-ham to the alleged buyer, and (b) convey-anee of title to automobiles by the buyer to Dunham individually, and (c) by prepayment of leases on automobiles to Dunham individually. The evidence further reflects if defendant could deliver the log books on the airplane to Southside, and if upon inspection the buyer’s pilot found the airplane airworthy and mechanically sound, then the price to be paid defendant was to be increased. The evidence does not establish a method of ascertaining the amount of the increase.

In light of this conflicting evidence as to consideration and the method and conditions of payment, the record fully supports the trial court’s finding that there was no fixed ascertainable price for the airplane, and for this reason there was no valid sale.

For reasons assigned, the judgment is affirmed at appellants’ cost.


author: MARVIN, Judge.

text:
    Betty WHITENER, Plaintiff-Appellee, v. Durwood CLARK et al., Befendants-Appellants.
    No. 13481.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    Rehearing Denied April 4, 1978.
    Writs Refused May 12, 1978.

      John ,S. C. Massey, West Monroe, for defendants-appellants.
    McKinley, Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appel-lee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

This case is a sequel to Clark v. Whitener, 296 So.2d 393 (La.App. 2d Cir. 1974), where we affirmed a judgment in favor of the contractor against the homeowner for re-tainage due on a residential building contract. There we found substantial compliance with the contract, but reserved to the homeowner her right to claim damages in a separate action against the contractor for his alleged unworkmanlike performance.

In the homeowner’s suit which followed, the contractor and bonding company appeal from a judgment in favor of the homeowner for damages and the cost to correct defects in the construction and to complete the home in accord with the original contract. The homeowner answers the appeal seeking to increase the judgment. The judgments totaled $15,361 in the first case and $16,846 in this case. As amended, we affirm and adopt the lower court’s reasons for judgment.

SEVERANCE OF THIRD-PARTY DEFENDANTS

The contractor impleaded several of his subcontractors as third-party defendants, contending in the alternative for judgment against each subcontractor for whatever respective sums that the contractor might have been ordered to pay the homeowner in the principal demand for deficiencies in the work each subcontractor obligated himself to perform.

The record and minute entries are not exceedingly clear as to the disposition of the third-party demands, but apparently these demands were ordered severed from the principal demand a few days before trial on a rule to show cause. The rule to show cause issued on the homeowner’s allegations that most of the third-party defendants (nine in number) were impeding and delaying trial of the principal demand because they were yet filing numerous pleadings and motions and had failed to appear at pre-trial conferences and to otherwise comply with pre-trial rules.

The homeowner alleged that she was entitled to severance under C.C.P. Art. 1038. Under some conceivable circumstances it could be foreseeable that a third-party plaintiff would suffer an injustice if his third-party demands were severed and separate trials ordered. By denying severance, undesirable piecemeal appeals would be avoided and defenses of third-party defendants which might inure to the benefit of the principal defendant on the main demand could be heard and all demands decided at the same time.

It has been recognized, however, that the trial court has discretion in determining whether the incidental demands are to be tried with the main demand. See Johnson v. Ponder, 225 So.2d 633 (La.App. 1st Cir. 1969), writ denied; Offshore Crewboats, Inc. v. Harredge, 306 So.2d 774 (La. App. 4th Cir. 1975). This record contains no evidence from which we can find an abuse of discretion on the part of the trial court in granting severance and we cannot presume any.

THE RELEASE OF THE ARCHITECT AS AFFECTING THE CONTRACTOR

By supplemental pleadings filed after suit was instituted against the contractor, the homeowner sued the architect, seeking recovery on the basis of the architect’s failure in design and in supervision of the construction. The contractor prayed for judgment jointly, severally, and/or in solido against all defendants.

After this occurred and before trial, the homeowner and architect amicably settled their dispute and the architect and his insurer were released by the homeowner and were dismissed as defendants with reservation by the homeowner of her rights against the contractor.

The contractor contends that he and the architect were solidary obligors and the effect of the release of the architect results in the release of the contractor to the extent of one-half of the obligation found. We do not dispute the legal effect of such a release of one solidary obligor, but we do not find that the architect and contractor were solidary obligated in all respects for the items of damage found against the contractor.

In an excellent and detailed 16-page opinion, the trial court considered the multitude of complaints about the construction asserted by the homeowner. She sued for $60,000 itemized damages and was awarded less than $17,000. Generally, the items of damage which concerned the lower court were functional and cosmetic and did not relate to faulty design. The architect’s shortcomings, if any, resulted not from faulty design but from failure to timely require the contractor and the subcontractors to comply with the plans and specifications in workmanship and material. It is also shown that the architect sent to the contractor several itemized lists (called “punch lists”) of unsatisfactory or incomplete work before formally giving the contractor written notice that the homeowner intended to invoke the provisions of the contract which allowed her, through others, to complete the contract at the contractor’s expense. Under these circumstances, the architect may not be a solidary obligor with the contractor. See and distinguish Town of Winnsboro v. Barnard & Burk, Inc., 294 So.2d 867 (La.App. 2d Cir. 1974). Whether solidarity is found, when not expressly undertaken, depends upon the particular circumstances presented. We find no manifest error in the lower court’s concluding that no solidarity existed under the circumstances found and we adopt the lower court’s opinion in these respects except as otherwise shown.

CRACKS IN CONCRETE SLAB

The lower court found two cracks in the concrete slab foundation which were labeled as “major” and as “serious” with some “not appreciable difference” in floor level (displacement). The evidence conflicted as to whether the cracks were caused by the failure of the architect’s design. We note that the contract called for soil compaction tests, which we deem was one of the obligations assumed by the architect. From the record, it is impossible to determine whether the cracks in the foundation resulted from the design (coupled with the absence of soil compaction tests — a responsibility to be performed under the architect’s direction) or from poor workmanship. There is no evidence to show that the cracks resulted from poor workmanship and this we cannot assume. An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects. Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2d Cir. 1974). In this respect, we disallow the award of $2,400 damages assessed by the lower court.

PLUMBING AND SEWERAGE SYSTEM

The lower court correctly found $1,954.28 as the cost of correcting defects and omissions in the system. The plumbing subcontractor failed to install two field lines and a distribution box and failed to connect to the waste system the washing machine. To correct this, omission, the homeowner elected to install three field lines and a larger distribution box (a septic tank). Other defects were remedied by a larger diameter cooper pipe to replace a one-inch plastic (PVC) pipe supplying water to the home. Credits were allowed against this cost ($1,954.28) of $375 and $225, resulting in a net award to the homeowner of $1,354.28.

SWIMMING POOL LEAKAGE

We observe here that the bond for the home did not include the pool which was under a separate contract. As to the bonding company, this award should be rejected.

GENERAL DAMAGES

MENTAL ANGUISH

The lower court awarded $5,000 to the homeowner for her mental distress-even to extent of seeking psychiatric help — • caused by the shattering of her dreams of owning a beautiful home. The contractor contends an award for mental anguish arising from breach of contract is not to be allowed unless the object of the contract is gratification of some intellectual enjoyment. C.C. Art. 1934(3). This was the holding of Catalanotto v. Hebert, 347 So.2d 301 (La.App. 4th Cir. 1977), a case on a residential building contract directly in point, citing Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). We do not interpret Meador as did Catalanotto. We cannot say that damages for mental anguish are not authorized by C.C. Art. 1934(3) for a breach of contract for the construction of a distinctively planned residence. This type contract, in our opinion, is greatly different from the contract, as in Meador, for the repair of an automobile. We differ with the 4th Circuit, distinguish Meador, and in this case affirm the award of the lower court for damages for mental anguish.

The lower court achieved substantial justice in determining the award and we decline to increase the award as sought by appellee.

Recapitulation of amended award:

BELOW ITEM HERE
$1,354.28 Plumbing $1,354.28
3,172.50 Pool 3,172.50 *
2,400.00 Slab -0-
1,855.37 Electrical 1,855.37
639.70 Slate 639.70
1,525.00 Air Conditioning 1,525.00
900.00 Carpentry 900.00
5.000.00 General 5.000.00
$16,846.85 TOTAL $14,446.85

* Against the contractor only.

The judgment below is recast as follows:

It is hereby ordered, adjudged and decreed that there be judgment herein in favor of Betty Whitener and against Dur-wood Clark and Great American Insurance Company in solido for $11,274.35, with legal interest from judicial demand.

It is further ordered, adjudged and decreed that there be judgment herein in favor of Betty Whitener and against Dur-wood Clark for $3,172.50 with legal interest from judicial demand.

Fees awarded below to the experts who gave opinion testimony exclusively relating to the slab are disallowed.

Fees awarded below to experts who gave opinion testimony exclusively relating to the swimming pool are disallowed as to Great American Insurance Company only.

Except as amended above, judgment is affirmed at appellant’s cost.

On Applications for Rehearing; Motion to Dismiss.

Orders of appeal in this case were granted before January 1, 1978. Plaintiff-Appellee moves to dismiss appellant’s application for rehearing on grounds that it was not filed within fourteen days of rendition of our judgment. LSA-C.C.P. Art. 2166, prior to its amendment by Act 179 of 1977, provided the fourteen-day delay. The 1977 Act extended the delay to thirty days, but repealed prior laws in conflict, and made the provisions applicable to all appeals granted after January 1, 1978. The application in question was filed more than fourteen but less than thirty days after our opinion was mailed.

The Uniform Rules of the Courts of Appeal and the Supreme Court rules were amended to conform to the 1977 Act. The amendments to the appellate rules, published in the October 27, 1977 advance sheet (349 So.2d No. 3, XCII), were made effective January 1, 1978, without mentioning the effect on appeals ordered before January 1, 1978.

On January 10, 1978, the Supreme Court further amended its Rule XXIX by providing:

“Section 2. The provisions of this rule are applicable to all decisions of the courts of appeal rendered on January 1, 1978 and thereafter.” 353 So.2d No. 2, LXI.

We hold that the Supreme Court rule is controlling and that the provisions of Article 2166 as amended by Act 179 of 1977 are applicable to all judgments of this Court rendered on and after January 1, 1978, whether the date on which the appeal was ordered is before or after January 1, 1978.

The application for rehearing, was timely filed and the motion to dismiss is overruled.

Considering on the merits the applications for rehearing of both litigants, the applications are denied.

      . C.C. Art. 1934(3) reads:
      “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
      “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

      . Earlier, the 4th Circuit had allowed damages for mental anguish arising from the breach of a contract to construct a concrete block, walk-in cooler, Co-Operative C. Stor. Bldrs., Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App. 4th Cir. 1974).


text:
    CITY OF BOSSIER CITY, Plaintiff-Appellant, v. Joel Edward USERY and the Municipal Fire & Police Civil Service Board of Bossier City, Defendants-Appellees.
    No. 13482.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.

      DeLaune & Blondeau by Harvey P. De-Laune, Bossier City, for plaintiff-appellant.
    James B. Wells, Bossier City, for defendant-appellee, Joel E. Usery.
    Charles E. Welsh, Bossier City, for defendant-appellee, Municipal Fire & Police Civil Service Bd. of Bossier City.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

The District Court, to which the City appealed a decision of its Civil Service Board, sustained a motion to dismiss the appeal. The City appeals here. R.S. 33:2471, et seq.

The appeal was dismissed on the grounds that the City was estopped or barred from appealing because it had approved and implemented by formal personnel action directives, the Board’s decision.

The City contends that it was required by R.S. 33:2501 to enforce or implement the Board’s decision, from which no suspensive appeal can be taken, and that it should not have been held to be estopped by its actions from appealing the Board’s decision devolu-tively. R.S. 33:2501 reads in part that “ . . . the decision of the Board . shall be forthwith enforced by the appointing authority [in this case, the City] . . ” In Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App. 1st Cir. 1976), it was held that a suspensive appeal does not lie of right from a decision of the Louisiana Civil Service Commission. We need not decide, however, whether a decision of a municipal civil service board may be appealed suspensively as of right. The question here is estoppel or acquiescence, which if found, may bar any appeal, suspensive or devolutive. C.C.P. Art. 2085.

This case arose when the City demoted Police Major Joel Usery to captain because of his violations of departmental regulations. Usery appealed to the Board. After a hearing, the Board in a formal decision on June 12, 1977, modified the City’s demotion of Usrey by reinstating him to major but suspending him from duty for 45 days to commence on July 1, 1977. Twelve days after the Board’s decision, the City issued formal written directives entitled Personnel Action. These directives were signed by the mayor and by the chairman of the Civil Service Board. Usery was reinstated to major and served the 45-day suspension from duty as ordered by the City’s directives.

While Usery was serving his suspension, the City — -through a newly-elected mayor whose administration began July 1, 1977— appealed the decision of the Board to the district court on July 12, 1977, within the 30-day delay for appeal. See La.Const. Art. 10, § 18; Art. XIV, § 15.1 (1921); R.S. 33:2501; Touchette v. City of Rayne Mun. F. & P. Civ. Serv. Bd., 321 So.2d 62 (La.App. 3d Cir. 1975), and La.Const. Art. 5, § 16(B). Usrey’s suspension ended August 15, 1977. The Board filed the motion to dismiss on August 29, 1977. Usery testified at the hearing in support of the motion, but filed no pleadings.

The retiring mayor, whose term ended on July 1, 1977, testified on the one hand that he had no intention of appealing the Board’s decision and that he made a public statement at the time of the decision that he would “go along” with the Board to resolve the Usery situation and the effect on the police department and the City. On the other hand, the retiring mayor testified that by the directives mentioned, he “. . was approving the . . .decision of the Board ... as required by law,” and that his action in issuing the directives was not taken to estop the succeeding city administration from appealing if it wanted to appeal.

Equitable estoppel is the effect of a person’s voluntary conduct legally precluding him from asserting rights against another who, in reliance upon that person’s conduct and because of that conduct, has changed his position to the extent that he will suffer injury if that person is allowed to repudiate his conduct. Equitable estop-pel is designed to foster justice by preventing a person from taking a position contrary to his prior conduct, which has been detrimentally relied upon by another person. Shirey v. Campbell, 151 So.2d 557 (La.App. 2d Cir. 1963); State ex rel. Re-Lu, Inc. v. City of Kenner, 284 So.2d 866 (La. App. 4th Cir. 1973). Estoppel is not generally favored at law and is to be applied only in cases presenting special circumstances. Wilkinson v. Wilkinson, 323 So.2d 120 (La. 1975). We find no reliance or change of position by the Board under the circumstances presented and hold the doctrine of equitable estoppel inapplicable.

As in Major, supra, the issue is whether under the circumstances shown, the City voluntarily and unconditionally acquiesced in the Board’s decision modifying Usery’s punishment for violations of departmental regulations? C.C.P. Art. 2085.

Major presented similar facts. There, Major, a discharged employee, appealed his dismissal by his employer, the Department of Highways, to the Louisiana Civil Service Commission. The Commission reversed Major’s dismissal and ordered reinstatement with back pay. The Department appealed to the Court of Appeal. Major moved to dismiss the Department’s appeal on the grounds that the Department had reinstated him with back pay within 10 days of the Commission’s decision and then had appealed the Commission decision after his reinstatement. The Court found that the Department considered it was merely obeying the law in carrying out the Commission’s decision and held that there was no acquiescence by the Department in the Commission’s decision. This case perhaps could be factually distinguished because of the change of administration here, but the equivocation by the outgoing mayor in his testimony as summarized above, does not sufficiently prove acquiescence. See cases discussed in Major as to the nature and the burden of proof required in cases where acquiescence is the issue. There it was said, “[t]he unmistakable import of the latest decisions is that [the conduct relied upon for acquiescence under C.C.P. 2085] must be accompanied by intent to abandon the appeal . . . ” 327 So.2d 517.

At the cost of appellee to the extent that the same may be legally assessed, the judgment below dismissing the City’s appeal is reversed and the case is remanded.