text:
    Joseph D. VINSON and Louis B. Graham, Plaintiffs-Appellees, v. David P. LEVY, Mark P. Banjavich, Vincent P. Robin, III, John B. Wilkinson, and Balehi Marine, Inc., Defendants-Appellants.
    No. 12625.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.

      Ralph R. Miller, Wayne W. Foley, Norco, J. B. Kiefer, New Orleans, for plaintiffs-ap-pellees.
    Maurice J. Le Gardeur, Jr., Covington, John B. Wilkinson, New Orleans, for defendants-appellants.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This matter arose on a petition for in-junctive relief filed by the plaintiffs, Joseph D. Vinson and Louis B. Graham, to enjoin the defendants, David P. Levy, Mark P. Banjavich, Vincent P. Robin, III, John B. Wilkinson and Balehi Marine, Inc., from violating recorded restrictive covenants by using for commercial purposes Lots 27 and 29 in Oaklawn Subdivision, Section 39, Township 8 South, Range 13 East, St. Tammany Parish, Louisiana, as well as a 40-foot strip of land adjacent to Lot 27 (lying between Lots 27 and 47) in said section, with the plaintiffs obtaining an ex parte temporary restraining order and having a rule for a preliminary injunction set for hearing.

The scheduled rule was postponed with the parties agreeing to continue in effect the temporary restraining order until a hearing on the merits could be held. Thereafter, the defendants filed an exception of no right of action on the ground that the strip was a dedicated street which was not subject to the restrictive covenants. The plaintiffs then filed a rule for contempt of court for the defendants’ violation of the temporary restraining order by storing oil drums and machinery on the subject property in connection with the commercial activities of defendant Balehi Marine, Inc. The defendants responded by filing a motion to dissolve the temporary restraining order.

From a judgment granting to the plaintiffs a permanent injunction preventing the defendants from conducting any nonresidential activity on the lots and a portion of the 40-foot strip, ordering removal of commercial equipment from the said property, and finding the defendants in contempt of court for violating the temporary restraining order, the defendants have devolutively appealed. The plaintiffs have answered the appeal, seeking more extensive injunctive relief.

The trial court properly overruled the exception of no right of action. Plaintiffs have an interest in determining whether injunctive relief should be granted to prohibit the defendants from conducting any business or commercial activities on the subject property. See Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1 Cir. 1977). The trial court also properly overruled the exception of res judicata. The first suit involving these parties was. a declaratory judgment action in which the defendants in the instant suit sought to have the restrictive covenants in the deed from Louis B. Graham to Rose Marie Frazier Morrison and Henry Toomer Morrison declared to be inapplicable to Lots 27 and 47 and the 40-foot strip of land. No question as to the application of the restriction of the strip was presented in the first suit. The case was decided on motions for summary judgment filed by both parties based on the pertinent language of the restrictive covenants in the Graham-Morrison sale. The instant suit is not founded on the same cause of action as the first suit, and there is no identity of the thing demanded in the two suits. See Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978).

Taking the facts of this case into consideration, we find that we are unable to agree with the conclusion of the court below that there was a dedication of the particular strip of land in question. Accordingly, we affirm in part and reverse in part.

The record reflects that Balehi Marine, Inc. is the owner of a certain tract of land, Lots 46 and 47, fronting on Bayou Lacombe in St. Tammany Parish, on which it conducts shipyard operations. Immediately adjacent to the shipyard property is the property in question, Lots 27 and 29 and the 40-foot strip of land, which is owned by David P. Levy, Mark P. Banjavich, Vincent P. Robin, III, and John B. Wilkinson, each of them having acquired an undivided one-fourth interest from Mr. and Mrs. Henry T. Morrison on November 24,1975, whose deed of acquisition had first contained the restrictive covenants at issue. Joseph D. Vinson owns Lot 31, which is immediately adjacent to the property in question, and Louis B. Graham is the owner of Lot 35, which is adjacent to the Vinson property.

These restrictive covenants were created by one of the plaintiffs, Louis B. Graham, in his deed to Mrs. Rose Marie Frazier, wife of, and Henry Toomer Morrison (Mr. and Mrs. Henry T. Morrison) on October 8, 1968, conveying Lots 27 and 29 of Oaklawn Subdivision in St. Tammany Parish, together with a 40-foot strip adjacent to Lot 27. The restrictive covenants limited the use of the property to “residential purposes only” and required the unanimous consent of the owners of the conveyed property as well as the owners of adjacent lots (Lots 31, 33 and 35) for alteration of the restrictions. The validity and meaning of these restrictive covenants have already been ruled upon by this Court in Levy v. Graham, 347 So.2d 1180 (La.App. 1 Cir. 1977), where we held that the restrictive covenants in the deed transferring the property created a real obligation which was binding on the successors in title of Mr. and Mrs. Henry T. Morrison, so that the property could only be used for residential purposes unless use for other purposes was permitted by unanimous consent of the adjacent landowners. See LSA-C.C. art. 2015; Gremillion v. Rapides Parish School Board, 242 La. 967, 140 So.2d 377 (1962); McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960).

On appeal, the defendants-appellants do not question the injunctive relief granted as to Lots 27 and 29, conceding that the use of those lots is limited to residential purposes. Appellants, however, do strongly contend that the restrictive covenants have no application to the 40-foot strip of land, because at the time of the imposition of the restrictive covenants the vendor, Louis B. Graham, was not the owner of the strip, it having been statutorily dedicated as a public street (Clesi Avenue) by an act of dedication executed by Henry J. Robbert and John C. Dodt on May 24, 1911.

The applicable statue relative to dedication in the instant case is Act 134 of 1896 (now, after several amendments, LSA-R.S. 33:5051), which provides:

“Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in náture, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:
(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
(2) The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
(3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
(4) The name of each street and alley and its length and width in feet and inches.
(5) The name or number of each square or plat dedicated to public use.
(6) A certificate of the parish surveyor or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.”

While our jurisprudence is to the effect that substantial compliance with the statute is all that is required to create a statutory dedication, there has been more material and substantial non-compliance than compliance in the instant case.

We find the case of Pioneer Production Corporation v. Segraves, 340 So.2d 270 (La.1976), apposite. Justice Calogero, speaking for the Supreme Court, said:

“A statutory dedication is properly to be gleaned from the instrument, or instruments, of record, rather than from evidence or purported intention dehors the record. On the other hand what is of record must be given a rational construction in ascertaining the purport of the instrument. When that rational construction negates an intent on the part of the subdividing landowner to dedicate a particular piece of land, the fact that a reference to the land appears on a map does not, of itself, effect a dedication to public use. In Winningham v. Hill, 164 So.2d 384 (La.App. 2d Cir. 1964), the filing of plats indicating a twenty-foot by three-hundred seventy-eight foot strip of land without any symbols or marks from which a public purpose could be inferred was found insufficient to show dedication of the strip for public use. In Jefferson Parish School Board v. Assets Realization Co., 182 So.2d 818 (La.App. 4th Cir. 1966), plats indicating that a particular area was reserved for schools resulted in a finding that those areas were not dedicated to public use because the landowner did not intend thereby to dedicate them. And in the case of State Department of Highways v. Claitor, 289 So.2d 527 (La.App. 1st Cir. 1973) it was found that the fact alone that words of dedication are on a subdivision plat does not compel the result that the land in question has been dedicated.
“In the case before us, the Third Circuit held that ‘a privately owned fee interest subject to a public thoroughfare which existed before the creation and platting of a subdivision or even before the spo-radie sales ... is not subject to the fee-vesting effect of the statutory dedication unless the street is clearly shown as part of the subdivision by words or surveying symbols.’ 326 So.2d at 518. We agree with this conclusion.
“The absence of circles or other surveyor marks delineating the eighty-foot strip, the position of the highway right of way on the border of the subdivision instead of traversing it, the subdivider’s non-compliance with the statute with respect to indicating length and width of the right of way in feet and inches, the absence of any indication of exactly where the eighty-foot servitude lies in relation to the adjacent lots and the railroad right of way, and the fact that the property was the subject of a pre-existing conventional servitude granting use to the public are all indications that Segraves’ plat of subdivision did not effect, and cannot reasonably be construed to have been intended to effect, a dedication of this property in question for public use.”

The record reveals that the following exhibits were offered in evidence by the parties:

1.Plan of East and West Oaklawn, Exhibit D-l, prepared by Preston Herndon, C. E., April, 1911, recorded in Map File 218-B, of the official records of St. Tammany Parish, Louisiana. There is no indication that the Plan was also filed in the conveyance records or in the assessor’s office. The dimensions of measurements of some lots, the lot numbers and the section, township and range of the property are given. The streets are not named, designated or measured. With respect to D-l, plaintiffs-ap-pellees call our attention to the facts that Lots 36 and 47 are not designated thereon, the particular area in question is designated as Lots 1-5 (with no dimensions or measurements given), “Clesi Avenue” is not designated or indicated thereon, all or most of the lots are marked with a check or X, and that meaningless script writing from the reverse side has bled through the paper. If this writing was meant to be a dedication, it was not offered in evidence or made meaningful, so it can not be considered by us.

2. Plan of West Oaklawn, Exhibit D-8, prepared by Preston Herndon, C. E., April, 1911, recorded in Map File 187-A,, of the official records of St. Tammany Parish, Louisiana. There is no indication said Plan was filed in the conveyance records or the assessor’s office. This Plan shows a strip of land 40 feet in width designated as “Clesi Avenue,” but does not show Lots 27 and 29, and was not referred to in the description or title to the subject property. Many of the lots are marked with checks or X’s. There is no cross-reference from D-l to D-8, and no dedication is indicated on D-8. D-8 appears to be a map of resubdivision of Lots 1-5 as shown on D-l, but does not show when it was recorded and makes no reference to the land owner or owners. The Plan also has written notations of “NOGN” on Lots 46 and 47. New Orleans-Great Northern did not acquire ownership of these lots until July 15, 1917.

3. Act of Dedication of East Oaklawn, Exhibit D-5, shows the dedication of certain designated streets, including “Clesi Avenue.” This Act is irrelevant to the instant case since it concerns “East Oaklawn,” which is not the subdivision in which the property at issue is located, and reference is made to a plan of A. G. Mundinger, C.E., dated July, 1912, which deals with 385 town-lots in Section 33, Township 8 South, Range 13 East. There is nothing to indicate that the Mundinger plan was ever filed in St. Tammany Parish, Louisiana, or was offered in evidence.

4. Act of Sale and Exchange by and between Dodt Realty Company, Inc. and New Orleans Great Northern Railroad Company (NOGN), dated June 22, 1917, recorded July 15, 1917, wherein NOGN acquired Lots 46 and 47, according to map of West Oaklawn filed May 24, 1911, together with Lots 27, 29, 31, 33 and 35, according to plat of East and West Sections of Oaklawn, filed May 24, 1911, and all right, title and interest in a 40-foot strip of land lying between Lots 47 and 27, Exhibit D-4.

5. Act of Deposit of Map of Proposed Land Exchange between NOGN and Dodt & Robbert, dated December 28, 1939, Exhibit LBG-1, referring to Item 4 above. Said Map is filed as Exhibit LBG-3, which shows a 40-foot strip as an unmarked roadway adjacent to Lot 47. These items were filed in Orleans Parish.

6. Act of Credit Sale by New Orleans Great Northern Railway to Walter J. Graham, dated December 28, 1939, recorded January 10, 1940, Exhibit LBG-2, conveying Lots 46, 47, 27, 29, 31, 33, and 35, together with all right, title and interest of NOGN in 40-foot strip of land between Lots 47 and 27.

7. Judgment of Possession in Succession of George S. Graham, dated and recorded September 1, 1961, in which Louis B. Graham and Hazel Graham Goodwill are recognized as the sole heirs of George S. Graham and sent into possession of an undivided one-half interest each of property of the decedent, including the aforesaid 40-foot strip of land, Exhibit D-3.

8.- Act of Partition between Louis B. Graham and Hazel Graham Goodwill, dated August 30, 1961, recorded September 15, 1961, Exhibit D-7, in which Louis B. Graham receives the said 40-foot strip of land, along with other property.

9. Act of Credit Sale from Louis B. Graham to Rose Marie Frazier Morrison and Henry Toomer Morrison, dated October 8, 1968, recorded October 9, 1968, Exhibit D-2, in which the 40-foot strip is conveyed without warranty and the aforesaid restrictive covenants are imposed.

10. Survey Map, Exhibit D-6, dated February 13, 1975, prepared by J. R. Fitz-morris, Registered Land Surveyor, for David Levey (Levy), of West Oaklawn, Part of Section 39, Township 8 South, Range 13 East, St. Tammany Parish, La., on which certain Lots numbered 46 through 71 are designated. Clesi Avenue and Robert (Rob-bert) Road, Bayou Lacombe and G.M. & O.R.R. are also designated on the map.

None of the exhibits in the record indicates a formal statutory dedication by any land owner to the parish of the 40-foot strip, nor is there anything else in the record to show a dedication of the strip to the public by the owner. The failure to establish proof of a formal dedication by the land owner and the recording of the plat thereof, one of the necessary requirements of the dedication statute, is sufficient for us to rule that the defendants-appellants have failed to show that there has been a statutory dedication of the strip of land in question.

Considering all of the evidence before this Court, we hold that there has been neither strict nor substantial compliance with the statute, and that there has been no statutory dedication of the 40-foot strip of land. See Eshleman v. Duracher, 325 So.2d 688 (La.App. 1 Cir. 1976).

For the foregoing reasons, the judgment appealed is reversed insofar as it limits the applicability of the restrictive covenants and the injunctive relief granted to only the South half of the 40-foot strip of land between Lots 47 and 27, by decreeing that said strip had been validly statutorily dedicated; the judgment is affirmed in all other respects. Accordingly, the judgment is amended and recast to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the acts complained of herein by plaintiffs are injurious to the plaintiffs, are an impairment of their property rights, and are in violation of those restrictive covenants affecting the property hereinafter described, and, accordingly, the defendants, DAVID P. LEVY, MARK P. BANJAVICH, VINCENT P. ROBIN, III, JOHN B. WILKINSON AND BALEHI MARINE, INC. are hereby permanently enjoined, restrained and prohibited from conducting any activity of any nature whatsoever, other than residential activity, on the property hereinafter described, and/or from conducting and/or constructing any business, business enterprise, noxious or offensive establishment and/or activity on the property hereinafter described, to wit:

TWO (2) CERTAIN LOTS OF GROUND, situated in St. Tammany Parish, State of Louisiana, in Section 39, Township 8 South, Range 13 East, which lots of ground are designated as the Numbers twenty-seven (27) and twenty-nine (29) on a plat of east and west sections of Oaklawn, N. J. Clesi, Agent, filed by Henry J. Robbert and John C. Dodt, in the office of the Clerk of the District Court for St. Tammany Parish, Louisiana, dated May 24, 1911, and as per blueprint annexed to act of Felix H. Lapeyre, Notary Public, Orleans Parish, Louisiana, dated December 28, 1939. According to said blueprint aforesaid, each of the said lots measures 208.7 feet on Robbert Road and extends to Bayou Lacombe, having a total frontage for both lots on said Bayou of 417.4 feet, with a depth on the line dividing Lot 29 from Lot 31 of approximately 1400 feet.
Also, all that portion or strip of land 40 feet in width lying between Lots Nos. 47 and 27 as shown on the aforesaid map or plat, and lying adjacent to the said Lot No. 27.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the storing of oil drums and pieces of machinery on the property hereinabove described, including the aforesaid 40-foot strip of land, was in violation of previous orders of court and those restrictive covenants affecting the property hereinabove described, and accordingly, the defendants, DAVID P. LEVY, MARK P. BANJAVICH, VINCENT P. ROBIN, III, JOHN B. WILKINSON AND BALEHI MARINE, INC. are hereby found to be in contempt of court and are hereby ordered to remove the oil drums and machinery located on the property hereinabove described within 30 days of the finality of this judgment.

We further cast the appellants for all costs.

AFFIRMED IN PART; REVERSED IN PART.

      . No claim of an implied or common law dedication, which would constitute a servitude only, is made since admittedly there was no use or other acceptance of the strip of land by the public. See Eshleman v. Duracher, 325 So.2d 688 (La.App. 1 Cir. 1976); Comment, Dedication of Land to Public Use, 16 La.L.Rev. 789 (1956); Comment, the Third Dimension of Dedication in Louisiana, 30 La.L.Rev. 583 (1970).

      . Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965); Metairie Park v. Currie, 168 La. 588, 122 So. 859 (1929); Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App. 1 Cir. 1967), writ denied, 251 La. 46, 202 So.2d 657 (1967); Collins v. Zander, 61 So.2d 897 (La.App.Ori. 1952).


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Joseph VINCENT et al. v. Alfred L. GILL et al.
    No. 12454.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.
    Gary L. Keyser, Baton Rouge, of counsel, for plaintiffs-appellees.
    Robert L. Klienpeter, Baton Rouge, of counsel, for defendants-appellants.
   LANDRY, Judge.

This appeal by defendants, Alfred L. and Sandra Gill and their insurer American International Insurance Company (Appellants), is from judgment awarding plaintiffs, Joseph and Lucy Vincent, special damages in excess of the amount prayed for. The action arises out of an automobile collision in which an automobile being operated by Lucy Vincent was rear-ended by a vehicle belonging to defendant Alfred L. Gill and being operated by defendant Sandra Gill. Liability for the accident is conceded. The award for general damages is uncontested. The sole issue on appeal is the propriety of an award for special damages in excess of the amount prayed for.

This matter was originally heard before a three judge panel of this court, of which two members favored reversal with one dissent. This necessitated a hearing before a panel of at least five judges. La.Const. 1974, Article 5, Section 8(B). We elected-to hear the matter en banc.

During trial plaintiffs offered evidence of special damages, namely, alleged lost earnings and medical expenses not specifically pleaded. Defendants objected on the ground that such evidence enlarged the pleadings. Plaintiffs then requested “an instanter of the pleadings to conform with the facts as they’re developing.” The court elected to rule later on the objection. Plaintiffs then offered evidence of special damages exceeding the amounts claimed in their original petition, defendants renewing their objection to this offer. No ruling by the trial court was made on defendants’ objection. No amendment to plaintiffs’ petition was filed in the trial court. Judgment was rendered in favor of plaintiffs for special damages in excess of those pleaded.

Since the appeal has been lodged in this court, plaintiffs have moved for a remand to the trial court for the filing of the requested amendment to their petition.

We are aware that La.C.C.P. 861 requires that items of special damages shall be specifically alleged.

We also note La.C.C.P. Article 5051 which mandates a liberal construction of procedural rules and their interpretation in light of the principle that such rules are not an end in themselves, but are merely implements of substantive law. Also pertinent are the provisions of La.C.C.P. Article 865 which declares that pleadings shall be construed so as to do substantial justice between the parties. See also Paxton v. Ballard, 289 So.2d 85 (La.1974).

Under the circumstances peculiar to this case, we find that the interests of justice demand a remand to allow plaintiffs opportunity to file a written amended pleading and to permit Appellants opportunity to oppose the increased demand if defendants so wish.

Accordingly, the trial court’s award of special damages rendered herein is reversed and set aside and this matter is remanded to the trial court with instructions to permit plaintiffs’ filing an appropriate amendment of pleadings and to afford defendants full opportunity to oppose such items of special damages as Appellants shall deem necessary or requisite; all costs of this appeal to be paid by plaintiffs.

AMENDED AND REMANDED.


author: SAMUEL, Judge.

text:
    Isadore D. BRICKMAN, M. D. v. BOARD OF DIRECTORS OF WEST JEFFERSON GENERAL HOSPITAL et al.
    No. 9804.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Refused Sept. 4, 1979.

      Archie C. Tatford, Jr., New Orleans, for plaintiff-appellant.
    George M. Papale, Gretna, for defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, Isadore D. Brickman, M. D., filed this injunction suit against the Board of Directors, as a body and individually, and other officials of West Jefferson General Hospital seeking to compel the hospital to advance him to full staff membership and to allow him to operate or assist in surgical procedures at that hospital.

The trial judge refused to issue a temporary restraining order, but set a hearing on a preliminary injunction twelve days after suit was filed. The defendants then filed exceptions of lack of jurisdiction, prematurity, and no cause or right of action. The exceptions were set for hearing on the same day.

Following the hearing on the exceptions, the trial court maintained the exception of prematurity on the ground that defendants were in the process of affording plaintiff an administrative hearing which had not been completed at the time suit was filed. Accordingly, there was judgment dismissing the suit as premature. Plaintiff appeals from that judgment.

No evidence was offered on the injunction. The record before us consists of the hearing on the exceptions, the pleadings, memoranda and exhibits submitted to the trial court.

On December 28, 1977 West Jefferson General Hospital sent a letter to plaintiff advising him his provisional staff appointment would be terminated for the calendar year 1978 upon the recommendation of the “Credentials Committee and the Executive Committee of the Medical Staff.” At this time plaintiff was in his third year on the hospital’s provisional medical staff, in which capacity members are assigned to departments where their performance is observed by the head of the department or his representative until their probation conditions have been fulfilled.

The present case involves the decision of the hospital not to admit plaintiff to a full active medical staff membership. Plaintiff alleges defendants violated the bylaws of the hospital regarding this denial because the hearing to which he was entitled under the bylaws was not held within ten days as required thereby.

The manner for suspension and revocation of staff members’ privileges is provided in the hospital’s bylaws as “Appendix A, II”. This section sets forth a detailed method for affording a physician whose staff membership is adversely affected by the decision of the hospital an opportunity to be heard with regard to such decision.

In accordance with the applicable bylaw provision, plaintiff was advised in the December 28, 1977 letter of his right to request a hearing, the delay for doing so, and the result of his failure to make such a request. In a letter dated January 3, 1978 plaintiff requested an immediate hearing and notification of the date thereof and charges against him. On January 11, 1978 the hospital notified plaintiff by letter a hearing would be held on January 18, 1978 at the hospital. The letter further advised plaintiff of the manner in which the hearing would be held, of the appointment of a non-voting hearing officer, of his right to an attorney at the hearing, and furnished a written statement concerning the charges against him by the Executive Committee.

By letter of January 11, 1978, plaintiff requested a copy of the bylaws and stated he would be present for the hearing with an attorney. On January 16, 1978 a letter from the hospital was brought by hand to plaintiff together with a copy of the medical staff bylaws. A request was made in this letter to have plaintiff furnish his attorney’s name so that procedures regarding the pending hearing could be discussed with him. On January 16,1978 plaintiff’s attorney advised the hospital’s Chief of Staff he would represent plaintiff and notified him of the violation of the rule requiring a hearing within ten days of demand.

On January 18, 1978 the hearing was convened and plaintiff and his attorney were present. Plaintiff attacked the procedural right of the committee to hold the hearing because he had not been “observed” as required in the bylaws and because the hearing was not conducted within the ten day period provided in the bylaws. After evidence was submitted by both sides on these Drocedural matters, the ad hoc committee .empaneled to conduct the hearing retired to consider tile merits of the procedural arguments. The committee overruled the objections and ruled that the hearing should go forward as scheduled, over plaintiff’s objection.

At this point, plaintiffs attorney objected to any further hearing until he was furnished the specific medical records which formed the basis for the hospital’s recommendations that plaintiff not be appointed to full staff membership. Twenty-two medical records were furnished plaintiff, together with other exhibits. Then plaintiff’s counsel requested time to review the documents to determine if he needed any other evidence with regard to the substantive charges. Accordingly, with plaintiff’s concurrence, the hearing was continued to January 25, 1978.

On January 25, plaintiff’s attorney informed the committee he had called the hospital for additional evidence, but was not furnished this evidence until the time of the hearing. He then requested another continuance in order to review the additional exhibits. The remainder of the January 25,1978 hearing only involved the introduction of other documents, including 33 medical records. These documents also were furnished to plaintiff. Plaintiff reiterated his request for a continuance to allow him to review the additional records and to determine if additional information were needed. With plaintiff’s consent, the hearing was rescheduled for February 15, 1978. On that day, an hour and a half before the scheduled hearing time, the hospital received a message stating plaintiff’s attorney was ill and unable to attend. Accordingly, the committee again rescheduled the hearing for March 1,1978. On February 15 a letter was sent to plaintiff and his attorney advising them of the new date.

On March 1,1978 counsel for the hospital received a call from plaintiff’s counsel advising him a petition for injunctive relief was being prepared and that plaintiff would not appear at the hearing. The committee decided to treat the non-appearance as a request for a continuance and again continued the hearing, this time to March 8, 1978, and forwarded a letter to plaintiff and his attorney advising them of this action.

On March 8, 1978, the hospital received a letter dated March 7, 1978 from plaintiff acknowledging receipt of the letter of March 1 and notifying the hospital he would not be able to attend the hearing. Counsel for the hospital advised counsel for plaintiff that the committee regarded the letter as a groundless request for a continuance and requested immediate notification of any legitimate basis for plaintiff’s non-attending. Plaintiff neither notified the hospital of a basis for a continuance nor attended, and the hearing was conducted on March 8,1978. For the first time, substantive evidence was presented, involving some of the medical records being considered. The committee adjourned until March 22, 1978, and on March 9, 1978 the hospital drafted a letter advising plaintiff and his attorney of the action taken and the next scheduled hearing date.

The proceedings at hand involve the right to practice in a particular hospital, and in no way involve plaintiff’s right to practice medicine; he is on the active staff of at least five other local hospitals. His injunction suit makes no showing of irreparable injury or loss resulting from the hearing being set fifteen days after his request instead of ten days as provided in the hospital’s bylaws. On the contrary, the allegations of irreparable loss and damaged reputation are directed to the substantive action taken by the committee and not to the procedural aspects of the hearing.

The law is clear that where membership in an organization is involved, and an administrative remedy is afforded to give the affected party a hearing consistent with due process of law, exhaustion of administrative remedies is a precondition to resort to the courts. In Braden v. Lewis, the Louisiana Supreme Court stated that one who becomes a member of a profession voluntarily subjects himself to the jurisdiction and processes provided in that profession for a determination of his rights if the procedures are followed without discrimination after proper and timely hearing, and such person must resort to the administrative machinery of his profession before seeking judicial relief.

The only real basis for plaintiff’s resort to injunctive relief is the failure of the board to conduct the hearing within 10 days of demand. As stated above, the record shows demand was made by letter of January 3, 1978 and a hearing was convened on January 18, 1978, 15 days after demand. The record contains no showing of any significant deprivation of any of plaintiff’s rights by commencing the hearing on January 18 instead of January 13. On the contrary, even had the proceeding begun five days earlier, the numerous continuances requested by plaintiff to ascertain and review evidence to be used in his hearing renders such a delay totally insignificant. The hearing was still in the process of being conducted at the time of plaintiff’s resort to the courts on March 8, 1978, and insofar as we know, the hearing has not concluded as of this date.

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

AFFIRMED.

      . We have previously held this appeal was not timely perfected insofar as the preliminary injunction was concerned. However, we maintained plaintiffs right to appeal devolutively from the dismissal of his suit insofar as his request for a permanent injunction was concerned. Brickman v. Bd. of Directors, La.App., 363 So.2d 86.

      . Because of their personal and confidential nature, the parties have not given us any information relative to the substance of the charges against plaintiff, nor is such information to be found in the record.

      . The hearing procedures provide for oral evidence under oath, the right to call and examine witnesses, the right to introduce exhibits, the right to cross-examine opposing witnesses on any relevant matter, the right to challenge witnesses regardless of which party called him to testify, the right to rebut evidence, and the right to remain silent, subject to cross-examination in accordance with constitutional safeguards. The bylaws further provide the hearing need not be conducted according to technical rules of evidence and that any relevant evidence would be admitted if it were the type upon which reasonable persons are accustomed to rely in the conduct of their own serious affairs, irrespective of any common law or statutory exclusionary rules.

      . Elfer v. Marine Engineers Beneficial Ass’n No. 12, 179 La. 383, 154 So. 32; Irwin v. Lorio, 169 La. 1090, 126 So. 669; Rabb v. Trevelyan, 122 La. 174, 47 So. 455; Braden v. Lewis, 148 La. 920, 88 So. 117.

      . See footnote 4, supra.


text:
    Kathryn Loretta SHORT, wife of John Andrew Fink v. John Andrew FINK.
    No. 9895.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Charles E. Hamilton, III, New Orleans, for plaintiff-appellee.
    Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

This is an appeal by the husband from a judgment awarding his wife permanent alimony in the sum of $120 per month following a divorce granted in his favor on the ground of living separate and apart for a period of two years.

In this court appellant contends:

1) The wife was not free of fault and thus is not entitled to alimony;
2) Alternatively, the continuation of $120 per month pendente lite as the sum awarded for permanent alimony is in error.

On the question of fault, the husband testified:

On June 19, 1975 he left home following an argument with his wife over turning off a television set. She threw him and his clothes out and demanded the key to the house. They have been married 18 years and it has been a marriage of constant bickering. She is always fighting with someone and making her husband the scapegoat. Over the past few years her housekeeping has deteriorated and on at least one or two evenings per week she doesn’t make dinner for him. The parties occupy separate bedrooms and had sexual relations infrequently.

The husband’s witness (his sister’s husband) testified only that he knew the parties had separate bedrooms and that over a period of 18 years he never saw the husband’s wife accompany him to ladies functions with the VFW.

The wife’s testimony is that the argument immediately preceding her husband’s leaving was caused by his packing to go to a convention and refusing to take her along. He left on his own accord. She asked for his keys because she didn’t want him returning in the middle of the night and frightening her. She had gone to a few conventions with him when invited, but he didn’t invite her often.

She has been employed as a teacher full time during the marriage until she retired due to a heart condition. Her husband gave her very little money for household expenses while they were living together and she had paid her own way during most of the marriage.

As this court observed in Adler v. Adler, La.App., 239 So.2d 494, on the question of alimony under C.C. Art. 160:

“The jurisprudence under the article is well settled. The wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707; Oliver v. Abunza, 226 La. 456, 76 So.2d 528; Chapman v. Chapman, La.App., 130 So.2d 811. To constitute fault within the meaning of Article 160, the wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation rather than a justifiable or natural response to initial fault on the part of the husband. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Kendrick v. Kendrick, supra; Davieson v. Trapp, 223 La. 776, 66 So.2d 804; Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457; Felger v. Doty, 217 La. 365, 46 So.2d 300; Hawthorne v. Hawthorne, 214 La. 905, 39 So.2d 338; Chapman v. Chapman, supra; Davidson v. Jenkins, La.App., 216 So.2d 682; Smith v. Smith, La.App., 216 So.2d 391; Reynolds v. Reynolds, La.App., 228 So.2d 182. And the wife bears the burden of proving with reasonable certainty both the fact that she was free from fault and the fact that she has not sufficient means for her support. Vicknair v. Vicknair, supra; Richards v. Garth, 223 La. 117, 65 So.2d 109; Hawthorne v. Hawthorne, supra; Davidson v. Jenkins, supra; Gradney v. Gradney, La.App., 191 So.2d 161; Calloway v. Calloway, La.App., 139 So.2d 55; Chapman v. Chapman, supra; Primus v. Primus, La.App., 129 So.2d 925; Lyles v. Lyles, La.App., 126 So.2d 859.”

On the basis of the evidence adduced at the trial, we agree that the record does not support a finding of serious misconduct on the part of the wife sufficient to deprive her of alimony.

In connection with alimony, the wife listed her monthly needs as follows:

Rent.'.$210.00
Insurance. 42.65
Food. 100.00
Telephone. 20.00
Clothing. 25.00
Cleaning. 10.00
Medical. 47.58
Automobile Insurance . 28.00
Gasoline . 40.00
Entertainment. 25.00
Bank Charges. 8.00
Miscellaneous. 10.00
Dues and Periodicals . 5.00
Total .$566.23.

She has a pension of $200 per month ($229 gross). Her work as a substitute teacher is limited to 140 days over a two year period. The work is not steady. She was to receive $87.50 per month on a note payable to herself and her husband but the husband had refused to deliver these funds to her for 26 months, despite a court order to do so.

She had earned approximately $400 as a substitute teacher until the end of February, 1978, but was precluded by school regulation from working further through July, 1978. Her husband complains of her financial ability to take European trips but she testified her son (a doctor) gave her money to go and also that she had a summer position as a tour director whereby all of her expenses (except meals) were paid as her compensation.

The husband is employed as a purchasing agent for a large shipyard. He earns $18,-000 per year. He also works for the Board of Jury Commissioners with earnings of $3,270 the previous year and $50 per month car allowance. He had not prepared a current list of his expenses but stated after paying all of his expenses he had $400 per month left.

Civil Code Article 160 provides:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of' the husband, alimony which shall not exceed one-third of his income.” LSA-C.C. Art. 160.

We find the wife’s listed monthly expenses to be reasonable. Even after deducting therefrom those expenses not payable under Civil Code Article 160 (as distinguished from alimony pendente lite under Civil Code Article 148), we find no abuse of discretion on the part of the trial judge in setting the amount of permanent alimony at $120 per month.

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

AFFIRMED.

      . Initially, the wife filed for separation on the ground of abandonment; the husband reconvened for separation on the ground of cruel treatment. Alimony pendente lite in the sum of $120 per month was granted to the wife. The separation suit was never tried and the husband later filed a supplemental and amended petition for divorce.

      . See Bernhardt v. Bernhardt, La., 283 So.2d 226, and Meyers v. Meyers, La.App., 344 So.2d 451.


author: SAMUEL, Judge. STOULIG, Judge, BEER, Judge,

text:
    Mr. and Mrs. Douville JUNOT et al. v. Mr. and Mrs. Thomas LEE and Gordon Hackman.
    No. 8223.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      William M. Detweiler, New Orleans, for plaintiffs-appellants.
    Gordon Hackman, Boutte, for defendants-appellees.
    Before SAMUEL, REDMANN, GULOT-TA, STOULIG and BEER, JJ.
   SAMUEL, Judge.

Plaintiffs, Mr. and Mrs. Douville Junot, filed this suit against Mr. and Mrs. Thomas Lee and their attorney, Gordon Hackman, for da.mages allegedly incurred through malicious prosecution. They complain the defendants maliciously and without probable cause filed numerous legal proceedings seeking to deprive them of the custody of their adopted child, that they incurred attorney fees of $2,500 to defend these frivolous claims, and that their emotional stability was threatened by the harassment to which they were subjected. The Lees are the parents of Mrs. Junot.

Following trial, there was judgment in favor of the three defendants and against the plaintiffs, dismissing the latters’ demand. Plaintiffs have appealed.

On October 6, 1968, Leah Grace Junot became the adopted child of plaintiffs. Between that date and March 17, 1973, at the request of the plaintiffs, the adopted child lived primarily at the home of the Lees. Plaintiffs’ household apparently was less stable because the family moved frequently as a result of the fact that Mr. Junot often changed jobs.

After having the child for approximately five years, the Lees were asked to return her to the Junots. They refused. On March 1, 1973, plaintiffs filed a writ of habeas corpus against the Lees seeking return of the child. After a hearing thereon, judgment was rendered on March 17, 1973 ordering the return of the child to the Ju-nots.

Contemporaneous with and subsequent to the habeas corpus hearing, Gordon Hack-man, as attorney for the Lees, filed a series of legal proceedings to remove the child from plaintiffs’ custody and return her to the Lees.

We summarize the proceedings filed and/or instigated by defendants’ attorney and the dispositions of each:

March 16, 197S (one day before the habe-as corpus hearing) Mr. and Mrs. Thomas Lee petitioned the Juvenile Court to annul the adoption of Leah Junot. On March 21, 1973, the rule was denied with the notation that the “adoptive grandparents are not proper parties of interest to contest adoption in which final decree has been rendered on October 7, 1968.” On June 12, 1973, Hackman filed a notice of intention to apply for a writ of certiorari to this court, but never followed through with the application.
March 27, 1973 — Within two weeks of the issuance of the writ of habeas corpus requiring the Lees to return the child to the Junots, Hackman prepared and filed a petition to have the child declared abandoned based on allegations that the child had been living in the Lee home since her adoption. This had already been considered in the habeas corpus hearing. The Junots filed exceptions of no right or cause of action. On May 30, 1973, a judgment was rendered sustaining the exceptions on evidence stipulated by counsel. On June 4, 1973, Mr. Hackman filed a motion for an appeal which was not granted because of confusion in the record that he probably could have clarified. (We note the transcript indicates the judge felt the exceptions were moot because the admitted facts established there was no abandonment as a matter of law.)
June 6, 1973 — Mr. Hackman filed a petition on behalf of Mr. and Mrs. Lee seeking the adoption of Leah Junot. To this pleading the Junots filed exceptions of no right or cause of action, lack of jurisdiction and judicial estoppel. A hearing was set for September 10, 1973 and Hackman did not appear. Only 30 minutes before the hearing, his secretary called the court to say he would not be present, but by this time it was too late to notify opposing counsel and witnesses. Hackman was cited for contempt on the court’s own motion.

Malicious prosecution in civil cases occurs when legal actions are commenced without probable cause for the purpose of harassment. This definition exempts Mr. and Mrs. Lee from liability for the reason that, under Civil Code Article 3010, the agent alone is liable for acts beyond the scope of the mandate, and the Lees did not authorize their attorney to take any illegal action. They retained him to proceed within the law to have their grandchild returned to their custody, even if it meant, according to Mrs. Lee, taking it “to the highest court in the land”. From our reading of the record, we are satisfied the Lees acted in this matter out of their love and affection for the child. The record also supports a finding that they did not commence any unnecessary litigation for the purpose of harassment, nor has it been shown, and it cannot be presumed, that they authorized their attorney to engage in a futile or harassing series of legal maneuvers.

Relative to liability on the part of the attorney, Mr. Hackman, in Kogos v. Rittiner, La.App., 228 So.2d 62, 69, this court summarized the elements of malicious prosecution in a civil case as follows:

“We recognize the fact that a suit for damages arising out of a ‘malicious prosecution’ is not limited to criminal prosecutions, but may also result from civil actions. There are involved in this suit certain elements which would be present in a malicious prosecution suit, but there are other elements which go beyond the events directly involved in a civil action complained of.
The authorities cited by defendant Nel-kin on this subject are thoroughly sound and generally recognized. The test applied to determine liability in such cases was stated by our Supreme Court in Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass'n., 195 La. 347, 196 So. 554, 556 (1940), and applied in later cases as follows:
‘An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. * * ’ 38 Corpus Juris 386, section 5.”

As Mr. Hackman was trained in the law, he should have known that some of the pleadings filed by him would not achieve his clients’ purposes under the then current jurisprudence. Nevertheless, his “Russian roulette” method (as characterized by plaintiffs) of pleading does not violate the fifth element (in the above quotation from Ro-gos) required for a successful action for malicious prosecution, i. e., an absence of probable cause, to such an extent that, by itself, it would constitute malice. In the light of our changing jurisprudence, in all except where a clear case has been established, we must avoid second-guessing an attorney who urges a position which has little or no chance of winning under current jurisprudence. Particularly in recent and near recent years, numerous jurisprudential rules, settled by many cases over periods of many years, have been overruled and opposite results reached. Those results could not have been reached if the successful litigants had been prevented or deterred from asserting their positions.

To hold that an attorney who files pleadings, numerous or otherwise, in support of his client’s position has acted overzealously in his client’s behalf, and therefore is liable in damages to the other litigant or litigants because those pleadings have little or no merit, would result in an undesirable chilling effect on the attorney’s efforts to properly represent and support his client. If an attorney did not properly represent and support his client, he could be subjected to a suit for malpractice.

In Johnson v. Pearce, La., 313 So.2d 812, 816 the Supreme Court made this statement relative to actions for malicious prosecution in civil matters:

“This Court has repeatedly maintained, also, that ‘ “Actions of this sort have never been favored, and, in order to sustain them, a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent.” * * *

Finally, we analogize the matter before us to cases involving damages requested for frivolous appeal. The Supreme Court’s standard for such an award is found in Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634, 636-637:

“. . . . it is patent that, when appellate courts are required to assess the sincerity of counsel (or lack thereof) in the stand he advocates, they are dealing in a most nebulous area of subjective beliefs which cannot be determined, save in extremely exceptional circumstances, by judicial rejection of the claim as unsound. For, here, we are not attempting to judge a legal right or wrong but, rather, the truth of an asserted belief in a contention. Accordingly, when counsel proclaims his sincerity, a court finds itself without just cause to disbelieve unless, and only unless, the proposition advocated is so ridiculous or so opposed to rational thinking that it is evident beyond any doubt that it is being deliberately professed for ulterior purposes.”

Here, the record does not support a finding of malice on Mr. Hackman’s part. His testimony indicates he believed his clients had a cause of action against the Junots either under a theory that the judgment of adoption was a nullity or that the Junots had abandoned the child. In his written Reasons for Judgment, the trial court stated: “. . . the Court is of the opinion that albeit both parties are very serious in the question of adoption of the adoptive child, neither the Lees or Mr. Hackman were attempting to harass the Junots.” We agree with that conclusion.

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

AFFIRMED.

STOULIG, J., dissents with written reasons.

BEER, J., dissents.

STOULIG, Judge,

dissenting.

I respectfully dissent.

In my opinion the defendants, Mr. and Mrs. Thomas Lee and/or Gordon Hackman, their attorney, should be cast in judgment for all reasonable attorney fees incurred by the plaintiffs (after the initial habeas corpus proceeding) for malicious prosecution and harassment.

On October 7, 1968, Leah Grace Junot became the adopted child of plaintiffs by final judgment in Proceeding No. 1451 of the Juvenile Court for the Parish of Jefferson.

At the outset it should be noted that Mr. and Mrs. Lee are the parents of Mrs. Junot and they were requested by their daughter to permit the adopted child to live with them because of Mr. Junot’s frequent changes of employment and places of residence. The Lees agreed to keep the child on a temporary basis until the adoptive parents were in a better position to care for their child. After having the child in their home for five years, Mr. and Mrs. Lee were asked to return her to the Junots and they refused to accede to their daughter’s request. The ensuing struggle for custody touched off multiple court proceedings.

On March 1, 1973, plaintiffs petitioned the 24th Judicial District Court to issue a writ of habeas corpus and after a hearing was held, judgment was rendered March 17, 1973 requiring defendants to return Leah to the custody of her adoptive parents.

Contemporaneous with and subsequent to this hearing the attorney for Mr. and Mrs. Lee filed a series of legal proceedings that were apparently intended to remove the child from the plaintiffs’ custody and return her to the Lee home. His whole effort might be characterized as an exercise in futility because, from the inception, the maneuvers could not accomplish this for his clients. The abortive legal maneuvers were all filed within six months of the issuance of the writ of habeas corpus directing the Lees to return the Junots’ child to them. In reality it was a certainty in 1973, under the circumstances existing in this matter, that Mr. and Mrs. Lee would not be permitted to adopt this child or to regain custody by a judgment of the Juvenile Court. The majority opinion has enumerated the various legal maneuvers undertaken on the Lees’ behalf; however, they bear repeating to establish the time frame within which they were filed and to emphasize the character of the proceedings. The habeas corpus proceeding filed by plaintiffs was scheduled for hearing on March 14, 1973, but was continued at the request of the defendants’ attorney until March 17. During the intervening delay defendant attorney petitioned to annul the final judgment 'of the adoption of the minor child by plaintiffs, knowing full well that the Lees were not the proper parties of interest. The suit was dismissed and the attorney filed notice of the intention to file for writs, which were never effected.

Within two weeks of the judgment in the habeas corpus proceeding ordering the defendants to return the child to plaintiffs, the attorney for defendants provoked an action to declare the child abandoned even though this was one of the issues considered in the habeas corpus matter. In the abandonment hearing the attorney for defendants stipulated that the child had not been abandoned for four months prior to the filing of the action and/or hearing in the matter nor had plaintiffs refused to provide for the care and support of the child as required by R.S. 9:403. The Juvenile Court sustained an exception of no cause of action and dismissed the abandonment action based on the stipulations of both counsel.

Seven days after dismissal of the abandonment action, the defendants filed a petition for adoption of the minor based upon the allegations that the plaintiffs had abandoned the child since birth and for the last six months the child has been in defendants’ home, which were contrary to the stipulations of fact by defendants’ attorney in the abandonment proceeding. On the date of and immediately prior to the hearing on the adoption, the attorney for defendants informed the court he would not appear but would submit the matter on the welfare report. The petition for adoption was dismissed because the defendants and their attorney failed to appear for trial. The defendants’ attorney was cited by the court for contempt.

Meanwhile defendants’ attorney filed a devolutive appeal from the adverse judgment dismissing the abandonment action (the facts of which he stipulated). This appeal was dismissed because of defendants’ failure to timely perfect it.

Malicious prosecution in civil cases occurs when legal actions are commenced without probable cause for the purpose of harassment. If defendants directed their attorney to file the multiplicity of actions solely to compel the plaintiffs to undergo the expense, mental anguish and inconvenience of litigation, they should be cast in judgment for damages. On the other hand if the attorney acted beyond the scope of the mandate of his clients, then he is liable under C.C. art. 3010. Of these defendants the attorney trained in the law is charged with the knowledge that the numerous pleadings would not achieve his clients’ purposes and, at the same time, was aware they would cause inconvenience and expense to the plaintiffs. It cannot be validly contended that they were instituted for the purpose of maintaining physical custody of the child in the Lees, since the child had been returned to the plaintiffs on March 17.

The majority concludes the suit must be dismissed because the evidence fails to prove malice. It overlooks the jurisprudence that holds malice is present where there is a wanton and reckless disregard of rights. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Joyner v. Weaver, 337 So.2d 635 (La.App. 3d Cir. 1976). Joyner points out that generally malice must be inferred from the circumstances because it cannot be demonstrated by direct evidence.

Culpepper v. Ballard, 344 So.2d 110 (La. App. 2d Cir. 1977), holds malice will be inferred when the defendant has acted irresponsibly in prosecuting and in so doing has not considered the damage caused to the accused.

In this case Gordon Hackman filed one suit that he admitted had no merit and a second where he failed to appear for trial. These legal maneuvers instituted by defendants’ attorney were filed obviously with no expectation of achieving their objective and caused the Junots additional expenses for legal counsel and mental anguish because the custody of their child was threatened. Vigorous representation is commendable but I cannot agree with the majority that filing a series of useless pleadings is competent advocacy. I cannot view the attorney’s actions as vigorous representation; rather, I think he has crossed into the area, of irresponsibility. The facts warrant imputation of malice.

BEER, Judge,

dissenting.

I respectfully dissent for the reasons assigned by STOULIG, J.

      . By final judgment of the Juvenile Court for the Parish of Jefferson.

      . While there are many such instances, we believe these examples will suffice: Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (overruling the “separate but equal” doctrine which permitted racial segregation in public schools); Baumgartner v. State Farm Mutual Auto. Ins. Co., La., 356 So.2d 400 (holding a pedestrian-plaintiffs contributory negligence will not bar his recovery in a pedestrian-automobile accident); Turner v. Bucher, La., 308 So.2d 271 (holding a parent with whom a child resides is liable for the damages occasioned by the child’s acts, which acts are tortious when measured by normal standards, even though the child is of such tender years as to be legally incapable of committing a tort); and Holland v. Buckley, La., 305 So.2d 113 (holding there is a presumption of fault on the part of the owner of a domesticated animal which harms another person, regardless of whether the animal had dangerous propensities or if it had such propensities, whether the owner had knowledge thereof).

      . The abandonment action was filed ten days after the child had been returned to the plaintiffs and was being supported and maintained in their household. The Juvenile Court judge observed during the proceedings, “In view of the stipulations, we find that neither criteria has been met and accordingly, the case is dismissed.”


author: BOUTALL, Judge.

text:
    SOUTHERN SAVINGS ASSOCIATION v. LANGFORD LAND COMPANY.
    No. 9928.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Refused Sept. 4, 1979.
    Midió & Lehmann, Lawrence M. Leh-mann, New Orleans, for Feelgood’s Fotos, Inc., intervenor-appellant.
    Paula A. Perrone, New Orleans, for Southern Marigold, Inc., intervenor-appel-lant.
    Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer, New Orleans, for Continental Bank, defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This case involves a dispute as to the rights of a lessee and an option holder to the proceeds of a judicial sale after a superior creditor has foreclosed upon the property-

On May 1,1974, Langford Land Company leased property located at 611 Bourbon Street in New Orleans to Oscar Stafford and included within the lease an option to purchase. Stafford assigned this lease to Crater Corporation, which then assigned it to Southern Marigold, Inc., one appellant in this action. Feelgood’s Fotos, the other appellant, occupied a portion of the premises under a sub-lease specifically excepted in the assignment to Southern Marigold. Pri- or to this lease, a first mortgage had been placed on the property in favor of Southern Savings Association. Subsequent to the assignment, Langford executed a collateral mortgage in favor of Continental Bank, ap-pellee herein.

On January-5, 1978, the property was seized and sold at public auction pursuant to a petition for executory process, filed by the first mortgagee, Southern Savings Association, for an amount exceeding the debt owed on the first mortgage. Continental Bank, the second mortgage holder, requested that the excess be paid to them. Southern Marigold then intervened asserting that the recorded option in the assigned lease afforded it rights superior to that of the holder of the subsequently recorded mortgage to the proceeds. Feelgood Fotos also intervened asserting that its claim as sub-lessee to the surplus proceeds primed the claim of the second mortgagee. Continental Bank responded by filing exceptions of no cause of action against the intervenors. The trial judge maintained the exceptions dismissing both interventions. From this judgment, both intervenors appealed.

Appellant Southern Marigold contends that the recorded lease and option to purchase which it held on the property constitutes a privilege on the proceeds which affords appellant greater rights than the holder of a subsequently recorded collateral mortgage. Appellant argues that the obligation arising from the option confers a real right on the optionee and that, therefore, its relative ranking as to other real rights, namely the two mortgages, is determined by time of recordation.

Appellant accurately points out that a validly exercised option results in a binding contract to sell giving either party the right to specific performance or an action for damages for breach. See Civil Code Article 2462. Since the first mortgagee has exercised his rights of seizure and sale, however, before an actual exercise of the option by the intervenors, the remedy of specific performance is no longer available to appellant. Where rights of others have intervened and full compliance with a contract for delivery of an immovable is impossible, courts will deny relief of specific performance and relegate the party to an action for damages. See Thompson v. Thompson, 211 La. 468, 30 So.2d 321 (1947). What is at issue here is the distribution of the proceeds of a judicial sale. Regardless of any rights on the property held under its lease, appellant now merely occupies the position of an unsecured creditor as to the proceeds and is primed by secured creditors unless it can establish some basis for preference. It has an unliquidated claim for damages for breach of contract.

Civil Code Article 3184 states that:

“Lawful causes of preference are privilege and mortgages.”

Civil Code Article 3185 states that:

“Privilege can be claimed only for those debts to which it is expressly granted in this Code.”

A reading of the listed privileges reveals that the Code contains no privilege for the breach of an option contract or an agreement of sale. See Article 3249. Appellant, therefore, has no claim to the proceeds of this sale which is superior to that of the holder of a valid mortgage.' Privileges are stricti juris and must be strictly construed. See Article 3185, supra and Econo-Car International, Inc. v. Zimmerman, 201 So.2d 188 (La.App. 4th Cir. 1967). The operative effect' of a privilege may never be extended by implication or analogy to any situation not explicitly contemplated by the statute creating it. Martinez v. Therma-King Sales & Service, 346 So.2d 798 (La.App. 1st Cir. 1977).

We reject appellant’s contention that it is a holder of a real right entitled to equal ranking with the mortgage holders to claim the proceeds of the judicial sale. Real rights are distinguished as either principal or accessory. Principal real rights pertain to the substance of a thing which is placed to the service of the holder of the right, while accessory real rights pertain to the pecuniary value of the thing. Rights of preference may be attached by law to any right, whether personal or real. See Yian-nopolos, Real Rights in Louisiana and Comparative Law: Part 1, 23 Louisiana Law review 161 (1963). Examples of accessory real rights are mortgage, pledge and privileges on immovables.

The Louisiana Civil Code affords a preference to the accessory real right of mortgage and affords certain other rights a privilege attached to the real right, such as the special privileges on immovables created by Article 3249. Since the Legislature has granted no preference to one in appellant’s position, appellant has no right to claim the proceeds of a judicial sale ahead of a statutorily preferred creditor, even if appellant’s right to purchase could originally have been considered a principal real right.

The only other issue before us is whether the leases held by both intervenors create a preference to the proceeds of the sale. There is jurisprudence in Louisiana holding that a judicial sale in satisfaction of a mortgage dissolves any lease entered into subsequent to the mortgage. See Board of Commissioners v. Hibernia Bank in New Orleans, 52 So.2d 771 (Orl.App.1951); Thompson v. Flathers, 45 La.Ann. 120, 12 So. 245 (1893). Further we cannot see that a lessee has any more of a privilege to the proceeds than does an option holder. Any recourse which the lessees have is against the lessor. There is no support for the contention that the lessees are entitled to the proceeds of the judicial sale in preference to a mortgage holder.

The allegations of the petitions of both intervenors fail to state a cause of action upon which relief may be granted.

For the above reasons, the decision below is affirmed at intervenors’ cost.

AFFIRMED.


text:
    Hazel Lamia CAMBRE v. Carl M. CAMBRE.
    No. 9953.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Steven F. Griffith, Destrehan, for mover in rule-appellee.
    Ernest V. Richards, IV, Metairie, for defendant in rule-appellant.

      Before SAMUEL, BEER and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment changing the custody of one of her children (Wyatt, age 13 years at the time the judgment was rendered) to that of the father. In this court appellant contends: (1) she was absent and unrepresented at the trial due to lack of notice; and (2) alternatively, the record is devoid of evidence sufficient to support the change of custody.

Relative to the matter of notice, the mother was represented since April 4, 1974 by Joel T. Chaisson who on that date filed her petition for legal separation, represented her at custody and alimony hearings, in connection with settlement of the community, and later at the divorce of the parties, which was granted the father on February 27, 1976, and for various matters pertaining to rules for contempt and change of custody.

On April 28, 1978 defendant husband moved for a change of custody. His attorney requested personal service of process on the wife. The record reflects that such service was made by the sheriff on May' 3, 1978 and the clerk of court had certified that on May 1, 1978 a copy of the motion and order was mailed to all counsel of record. The hearing was set for June 9, 1978.

On May 22, 1978 Chaisson, plaintiff’s attorney, filed a motion to withdraw as counsel of record. On June 9, the date set for the hearing, defendant’s attorney requested a continuance for the following reason: “Both counsel for plaintiff and counsel for defendant are agreeable to having the above hearing continued to June 23, 1978.” The matter was continued until that date and defendant’s counsel certified a copy was mailed to all counsel of record.

Plaintiff's new attorney, Ernest V. Richards, IV, has never filed a motion to be recognized as attorney of record. However, on June 27, 1978 his motion for continuance was filed by the court, having been received on that date. The certificate of Mr. Richards indicates that he had mailed the motion on June 22, 1978. The motion was denied because it was received after the trial of the matter.

Thus, it is clear that plaintiff’s new attorney was fully aware of the fact that the rule for change of custody was set for June 23, 1978.

Under the provisions of C.C.P. Art. 1601 a continuance may be granted in any case if there is good ground therefor.

Plaintiff’s attorney, obviously aware that the hearing was set for June 23, cannot complain that his motion for continuance, mailed the day prior to the hearing and not received until a later date, was denied.

Nor do we agree that the record is devoid of evidence sufficient to support a change of custody. The father and his son, Wyatt, whose custody was sought to be changed, both appeared at the hearing. The father testified the mother’s new husband used unreasonable discipline on the children, striking them with belt buckles, monitored the telephone calls between himself and his children (although specifically ordered not to do so by the trial judge at an earlier hearing), and that plaintiff was consistently late in bringing the children to defendant on visitation days and late at arriving at the prearranged destination to return the children, that she ignored the court order to make the children available to him for the first three weeks of their vacation period after school closed, that they were not receiving sufficient religious instructions while in her care, and that the children were frequently left alone with no adults in the house.

The father testified to one occasion where Wyatt telephoned in a hysterical condition fearing that he had broken his arm. The children live in Bush, Louisiana and the father resides in New Orleans. The father tried to get assistance from a hospital (in Bush) but was told there was nothing the hospital could do unless he could get the child to the hospital. He again phoned the child trying to instruct him what to do, and called thereafter every 10 minutes. He first spoke with the child about 2:25 in the afternoon and it was not until after 6 p. m. that one of the younger children came home. He attempted to give instructions to the younger child to assist the brother, and continued to call constantly, but it was not until 9:25 p. m. that he was able to reach an adult in the family.

The trial judge spoke with young Wyatt for 15 minutes in chambers, and thereafter took the matter under advisement. It is to be noted that the trial judge suggested, and defendant’s attorney agreed, that the testimony of Father Farrell A. O’Reilley, who had testified in an earlier proceeding, was adopted in this proceeding. Fr. O’Reilley testified the children’s father is a good Catholic, attends weekly mass, has been generous with the church, and brings his children there on many occasions. He has a good reputation with the parishioners.

The father’s father, who lives next door, testified his son is able to provide a good home for the children and can arrange his work schedule so as to be home after school. It was also brought out that numerous uncles and aunts reside in the area and can be of help because they are a closely knit family-

We note that the record, since the initial filing for a petition of separation in 1974, is replete with domestic proceedings and that the trial judge had ample opportunity to be aware of all facets of this domestic matter.

It is well established that a party seeking to modify an existing custody judgment has a double burden of proving that the conditions under which the minor is living are detrimental to his best interest and further that the applicant can and will provide a good home and better environment if given custody. The evidence adduced at the trial was amply sufficient to support such a finding. Accordingly, we find no abuse of discretion in the trial court judgment ordering a change of custody.

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

AFFIRMED.

      . After he had filed a petition for divorce on the ground of adultery.

      . We are advised by defendant’s brief that the reason for personal service on plaintiff by the sheriff was because he had heard she was selecting other counsel; we are further advised that the request for the continuance made by defendant’s attorney on June 9 was at the request of the plaintiff’s new attorney and was made with the understanding after both attorneys consulted their calendar that June 23 was satisfactory to both and no further continuances would be requested. In view of the fact that Mr. Chaisson had withdrawn as attorney of record on May 22, the motion for a continuance filed June 9 by defendant’s attorney supports this advice relative to the agreement of defendant’s attorney with a new plaintiff attorney.

      . Decker v. Landry, 227 La. 603, 80 So.2d 91; Bergeron v. Bergeron, La.App., 257 So.2d 816; Brummett v. Hudson, La.App., 338 So.2d 124.


author: GARRISON, Judge.

text:
    ORLEANS PARISH SCHOOL BOARD v. PITTMAN CONSTRUCTION CO., INC., et al.
    No. 9987.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Polack, Rosenberg, Rittenberg & Endom, Kenneth F. Sills, New Orleans, for third party defendant-appellee Leroy Oubre.
    Kilbourne & Dart, Stephen P. Dart, St. Francisville, for Robertson L. Belden.
    Bernard, Cassisa, Babst & Saporito, William H. Syll, Jr., Metairie, for defendant-appellee Rockwin Corp., Inc.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for defendants-appellants Pittman Construction Co., Inc. and Trinity Universal Ins. Co.
    Before SAMUEL, BEER, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment which upheld certain dilatory and peremptory exceptions to a third-party petition. When structural failures were discovered within ten years from the completion of McDo-nough No. 45 school, the Orleans Parish School Board sued the contractors and architects who built it. Pittman Construction Co., Inc., the general contractor, was a defendant in the main demand and filed a number of third-party demands for indemnification. The exceptions raised by Leroy Oubre and Robertson L. Belden to Pittman’s third-party demands are the subject of this appeal.

The principal point disputed here is whether Pittman has a cause of action against Oubre, who was clerk-of-the-works for construction and an employee of the architect. Oubre’s exceptions of vagueness, prescription, and no cause of action were tried before a Commissioner, who recommended that the district court maintain the exception of no cause of action. The Commissioner reasoned that any action against Oubre had been barred by the passage of ten years, in accord with R.S. 9:2772. The district court acted on the recommendation, maintaining Oubre’s exception. Pittman has appealed.

The text of R.S. 9:2772 reads as follows:

“A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person furnishing the design and planning does not perform any inspection of the work, more than ten years after he had completed the design and planning with regard to actions against that person.
B.The causes which are pre-empted within the time described above include any action:
(1) For any deficiency in the design, planning, inspection, supervision or observation of construction or in the construction of an improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
This pre-emptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but jn no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property-
F. Nothing in this Section shall be construed as modifying the liability of responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later.”

The time sequence applicable here is as follows:

August 24, 1959_Pittman contracted with Orleans Parish School Board to construct school.
September 14, 1960_School Board’s acceptance of construction recorded.
July 29, 1964_Effective date of R.S. 9:2772 (Act 189 of 1964).
September 1, 1968__..Approximate date School Board discovered alleged structural failures.
August 1, 1969_School Board filed suit against Pittman, architects, and others.
June 29, 1973_Pittman filed third-party demands against Oubre and others.

It is obvious that R.S. 9:2772, if applicable, would destroy Pittman’s cause of action against Oubre, since more than ten years passed between the date construction was accepted and the date Pittman filed its third-party suit against Oubre, and since the statute’s “pre-emptive” period extends to “every demand whether brought . for contribution or indemnity or by third-party practice . . . .” (See last paragraph of Section B of statute.)

Appellant Pittman argues that R.S. 9:2772 is not applicable because it did not become effective till July 29, 1964, almost four years after the School Board filed its acceptance of construction, and that to apply it here would give it retroactive application, which Pittman contends cannot be done.

Laws usually are deemed to be only prospective in effect unless their language clearly indicates otherwise. Nonetheless, laws which are interpretive, curative or procedural are exceptions to this rule. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978). However, a law cannot be retroactively applied in any case where it would operate unconstitutionally to divest vested rights. Lott v. Haley, 370 So.2d 521 (La.1979).

“It is well established that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. . . . However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitution apply retroactively to disturb a person of a pre-exist-ing right. . . . Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. . . . Moreover, the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. . Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. . . . ” [Citations omitted.] Lott v. Haley, supra, at 523-524.

Applying the principles of Lott v. Haley to R.S. 9:2772, we conclude that the statute can be applied in this case without depriving Pittman of any vested rights, because the statute by its own terms allows “a reasonable time for those affected by the act to assert their rights.” Lott v. Haley, supra, at 524. The School Board filed suit against Pittman on August 1, 1969. Under the terms of the statute (Section G), Pittman had until September 14,1970 to file its third-party demands. In fact, even had the School Board not filed suit until the very last minute (September 14, 1970), Pittman would have had until September 14, 1971 to file its third-party claims, according to Section C of the statute.

Further, we find that this statute is remedial in nature. The clear intent of the statute is to limit the time within which actions may be brought to a certain period after completion of the improvement. See Title of Act, Acts 1954, No. 189 § 1 (“§ 2772. Pre-emptive period for actions involving deficiencies in design, supervision or construction of improvements to immovables”). Previously, the time from which a prescriptive period for an action now covered by the statute was measured varied according to the interpretation of an individual court as well as to the type of action. See, for example, Brasher v. City of Alexandria, 215 La. 887, 41 So.2d 819 (1949); American Mutual Liability Insurance Co. v. Favret, 224 F.Supp. 477 (E.D.La.1963); Orleans Parish School Board v. Pittman Construction Co., Inc., 261 La. 665, 260 So.2d 661 (La.1972). R.S. 9:2772, however, preempts such causes of action and cures what.the legislature found to be an overexposure to liability of contractors under the jurisprudence.

Since the statute is remedial in nature, it can be applied retroactively even in the absence of language to that effect. See Ardoin v. Hartford Acc. & Indem. Co., supra. Thus, the “pre-emptive” period of R.S. 9:2772 is applicable here because Pittman failed to assert its claim against Oubre until June 29, 1973.

We can dispose quickly of the other question before us. Robertson Belden, also named a third-party defendant by Pittman, filed an exception of improper citation, which was sustained by the district court. However, the judgment failed to order Pittman to cure the defect, as provided by La.C.Civ.P. Art. 933. Belden answered Pittman’s appeal and prayed that the judgment be modified to provide for curing the defect. Pittman has not contested this issue and we see no reason not to grant Belden’s request.

Finally, we note that Rockwin Corporation made an appearance on appeal to protect the district court’s judgment in its favor. (The judgment maintained Rockwin’s exception of improper citation.) However, appellant Pittman raised no issue in its brief regarding Rockwin, and on oral argument Pittman’s counsel noted that Pittman has no objection to affirmance of the judgment in Rockwin’s favor. Therefore, we affirm that portion of the judgment.

DECREE

Accordingly, the judgment of the district court is amended to order third-party plaintiff Pittman Construction Company to properly cite third-party defendant Robertson L. Belden, within thirty (30) days of the date this judgment becomes final, in default of which Pittman Construction Co., Inc.’s suit against Robertson L. Belden shall be dismissed. In all other respects, the judgment of the district court is affirmed.

AMENDED AND AFFIRMED.

      . If R.S. 9:2772 were not applicable, then Pittman would be able to maintain its suit against Oubre, because prescription does not begin to run on a claim for indemnity until the party seeking indemnification has been cast in judgment. Edward Levy Metals, Inc. v. New Orleans Public Belt Railroad, 243 La. 860, 148 So.2d 580 (La.1963).

      . The relevant portion of La.C.Civ.P. Art. 933 is the following:
      “When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the suit shall be dismissed only for noncompliance with this order.”


text:
    Ercilia Elrod LENY v. Maurice FRIEDMAN and Eugene Cerise.
    No. 10005.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Gertler & Gertler, David Gertler, James H. Looney, New Orleans, for plaintiff-appellant.
    Harry A. Burglass, Metairie, for defendants-appellees.
    Before SAMUEL, BEER, and GARRISON, JJ.
   GARRISON, Judge.

Mrs. Ercilia Elrod LeNy, appellant herein, sued Maurice Friedman and Eugene Cerise, appellees, to nullify a $14,000 judgment they had obtained against her. Her suit was based on Louisiana Code of Civil Procedure Art. 2004. Alternatively, her petition prayed that she be credited for sums paid to appellees before and after the date of the judgment sued upon. After trial on the merits of the nullity action, the district court ruled in favor of the defendants, dismissing the plaintiff’s suit. Her motion for new trial was denied, and she appealed.

Messrs. Friedman and Cerise were Mrs. LeNy’s attorneys for several years and represented her in extensive litigation. The judgment she attempts to nullify was taken in a suit by them against her for payment of attorneys’ fees. The Friedman-Cerise suit against her was filed on August 10, 1972. On the same day, Mrs. LeNy accepted service of the petition at the Civil Sheriff’s office and filed an answer in proper person admitting the allegations of the petition. On August 28,1972, the district court rendered a consent judgment against Mrs. LeNy in the amount of $14,000. That judgment had been signed by Mr. J. 0. Weil-bacher, III, counsel for Friedman and Cerise, and also by Mrs. LeNy in proper person. The judgment was subsequently recorded against property owned by Mrs. LeNy, but no attempt was made to execute it for several years. Friedman and Cerise continued to represent Mrs. LeNy for some time afterwards.

Friedman testified that the purpose of the judgment was to protect his and Cerise’s legal fees. He stated that they had undertaken the proceeding only after extensive discussion with Mrs. LeNy regarding their fees, because she preferred to have their fees fixed at a set amount rather than on an hourly basis; that the procedure was explained to her; and that she agreed to consent to the judgment against her because she had no liquid funds available to pay them, but she wished to allow them to protect their fee by recordation of the judgment. He also testified that the $14,000 amount was intended to cover future as well as past legal work, although that is not stated in the judgment. Mrs. LeNy does not deny that she signed the judgment, but she testified that she was not aware of the nature of the papers she signed. She alleges that she signed them because she trusted her attorney to prepare only proper papers for her signature. She alleges that she became aware of the judgment against her, and of its effect, only when she attempted to sell some of her property and was advised that there was a judgment recorded against it.

After hearing the evidence, the district judge concluded, in his Reasons for Judgment,

“It is obvious to this court that the plaintiff is a fairly intelligent woman who is not only able to read but who also possesses a college degree. In that light, the plaintiff has failed to convince the court that she was unaware that she signed a consent judgment against herself in the sum of $14,000.00.”

Plaintiff-appellant has raised two issues on appeal: (1) whether the actions of defendants-appellees constitute fraud or ill practices such as to render the $14,000 judgment a nullity; (2) if the judgment was not null, whether it is subject to credits for sums already paid to Friedman and Cerise.

It is a basic rule of law that in the absence of fraud, a person signing a written document is presumed to know its contents and he may not avoid the obligations contained therein by claiming that he did not read the instrument. South Central Bell Telephone Co. v. McKay, 285 So.2d 563 (La. App. 1st Cir. 1973). Furthermore, the determination made by the district court regarding Mrs. LeNy’s knowledge is a finding of fact which cannot be overturned in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Our review of the record convinces us that the finding here was basically a credibility question. As noted by appellees, Mrs. LeNy had been involved in extensive litigation, both as plaintiff and as defendant, regarding property, and had ample reason to be familiar with judgments and their effects. We find no manifest error in the district court’s conclusion that Mrs. LeNy was aware that she was signing a $14,000 judgment against herself. In view of her knowledge, we conclude additionally that there was no fraud by appellees in having her sign the judgment.

However, the question remains to be answered whether appellees’ use of this procedure against their client was an “ill practice” such as to nullify the judgment. Appellant’s major contention on this point is that appellees’ actions in obtaining a consent judgment against her for their fees, allegedly without her understanding what was going on, while continuing to represent her, violated the Louisiana State Bar Association Code of Professional Responsibility, and as such was an ill practice making the judgment null. While it is true that violation of the Canons of the Code of Professional Responsibility might nullify a judgment thereby obtained for ill practice, a plaintiff must prove such violation. Southern Discount Company v. Williams, 226 So.2d 60 (La.App. 4th Cir. 1969).

While appellees’ methods certainly constitute a bizarre billing practice, and one hardly to be recommended to other members of the bar, appellant has failed to prove it a violation of the Canons as applied to her. Our examination of the testimony in the record, as well as the pleadings and testimony in the records of previous litigation submitted as evidence in this case, lead us to conclude that the doctrine applicable to this case is scienti et volenti non fit injuria (an injury is not done to one who knows and wills it).

Finally, we address the question of whether Mrs. LeNy should receive credits against the $14,000 judgment for amounts already paid to Friedman and Cerise. The district court made no express ruling on this issue, and failed to mention it in his Reasons for Judgment. LeNy raised the issue again in her motion for new trial, but the motion was denied without written reasons.

The silence of the trial court on an issue raised by the pleadings and on which evidence was offered is to be taken as a rejection of that demand, in the absence of an express reservation. Succ. of Harleaux, 351 So.2d 1267 (La.App. 1st Cir. 1967), reversed in part on other grounds, 359 So.2d 961 (La.1978); Cagle v. Spade Drilling Co., Inc., 325 So.2d 354 (La.App. 3rd Cir. 1975); Brady v. American Ins. Co., 198 So.2d 907 (La.App. 4th Cir. 1967); Mexic Bros., Inc. v. Sauviac, 191 So.2d 873 (La.App. 4th Cir. 1966). Since the issue of credits was pleaded by LeNy and evidence was offered on it at trial, the silence of the trial judge on the point is to be taken as a dismissal of that demand. In effect, this was a finding of fact by the trial judge that the amounts LeNy paid to Friedman and Cerise were not for legal fees, but rather were for other, unrelated services they performed (such as accounting work, court costs, management fees and repair costs regarding the succession properties, and unrelated services to Mrs. LeNy’s mother). Such a finding is basically a credibility question, and the district court’s findings should not be reversed absent manifest error, Canter v. Koehring Co., supra. Our review of the testimony and the evidence does not prove the district court to have been clearly wrong in his findings, and therefore we affirm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

      . “A final judgment obtained by fraud or ill practices may be annulled.
      “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” La.C.C.P. Art. 2004.

      . The record indicates that LeNy’s suit for nullity was filed in response to Friedman’s and Cerise’s attempt to execute their judgment in 1976. They issue a writ of fieri facias to seize LeNy’s interest in the Succession of Samuel Floyd Elrod. In her petition for nullity, LeNy requested an injunction to prevent the seizure.

      . Records of prior litigation involving Mrs. LeNy which were introduced into evidence are the following, all from Civil District Court for the Parish of Orleans: (1) No. 440-312, Mrs. Geraldine de la Parra Elrod v. Mrs. Ercilia Elrod LeNy; (2) No. 448-039, Succession of Samuel Floyd Elrod; (3) No. 448-146, Succession of Samuel Floyd Elrod, et al. v. Ercilia Elrod, etc., et al.; (4) No. 452-972, Mrs. Ercilia Elrod LeNy v. Mrs. Geraldine de la Parra Elrod; (5) No. 521-063, Alcide Weysham v. Mrs. Geraldine Anita de la Parra Elrod; (6) No. 542-918, Ercilia Elrod LeNy v. Geraldine de la Parra Elrod; (7) No. 543-895, Maurice B. Friedman, et al. v. Ercilia Elrod LeNy; (8) No. 551-244, Succession of Mrs. Geraldine de la Parra Elrod.