text:
    WATTS BROTHERS BUILDERS, INC. v. ALTEX READY MIX CONCRETE CORPORATION et al. ANDERSON DUNHAM, INC. v. JOHN P. CRYER CONSTRUCTION COMPANY et al.
    Nos. 11335, 11336.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearings Denied Sept. 12, 1977.

      Robert L. Kleinpeter, Baton Rouge, for plaintiff Watts Brothers Builders, Inc.
    Frederick R. Bott, Deutsch, Kerrigan & Stiles, New Orleans, for defendant third party Hanover Ins. Co.
    James F. Abadie, Baton Rouge, for third party defendant V. L. Seale, Jr.
    E. Drew McKinnis, Baton Rouge, for plaintiff appellee-appellant in reconvention Altex Ready Mixed Concrete Corp.
    George R. Covert, Baton Rouge, for defendant-appellant Anderson Dunham, Inc.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

In these consolidated actions, appeals have been taken by Altex Ready Mix Concrete Corporation (Altex), and Anderson Dunham, Inc. (Dunham), from judgments rejecting their demands for recognition of their alleged materialmen’s liens and privileges against Watts Brothers Builders, Inc. (Watts), owners and developers of a subdivision, and Hanover Insurance Company (Hanover), surety on the performance bond provided by John P. Cryer Construction Company (Cryer), who contracted to perform the construction work on Watts’ subdivision. We affirm in part, reverse in part and render judgment in favor of Altex and Dunham against Hanover.

The issues presented are: (1) The alleged applicability of LSA-R.S. 9:4816(A), pertaining to the filing of liens against construction of two or more buildings or works by a single general contractor under a single building contract when buildings or works are situated on adjacent lots or parcels of land of a single owner; (2) Were the liens of Altex and Dunham timely filed so as to create a privilege against Watts’ land and improvements; and, (3) Did Altex and Dunham timely file direct actions against Hanover.

There is virtually no dispute as to the operative facts. On April 6, 1973, Watts purchased a tract of land for development into a residential subdivision. For purely economic and business reasons, Watts elected to divide the land into two subdivisions, designated as Woodland Ridge Sixth Filing and Woodland Ridge Seventh Filing, for purposes of development. Watts also elected to first construct the streets, sewers and sidewalks for the Sixth Filing and subsequently build the streets, sewers and sidewalks for Seventh Filing, dovetailing the latter work into the former. In furtherance of the plan, Watts entered into two written contracts with Cryer on April 12, 1973, one to construct the sewer system in Sixth Filing for $20,443.10, and the other for streets, drainage and sidewalks in Sixth Filing for $93,717.00. Performance bonds for both contracts were written by Hanover, through its alleged agent, Virgil Seale, in the stated contract amounts. Both contracts and bonds were timely recorded. Certificates of substantial completion of the sewer contract and the streets, drainage and sidewalk contracts were recorded by Watts January 28, 1974, and January 29, 1974, respectively. As a further precaution, Watts recorded an additional acceptance of both Sixth Filing contracts on May 8, 1974. On June 24, 1974, Watts was issued a clear lien certificate by the Clerk of Court.

The sale of lots in the Sixth Filing development exceeded Watts’ expectations to such extent that prior to completion of said work, Watts signed a contract with Cryer, on July 18, 1973, for construction of the sewer system, streets, drainage and sidewalks on the Seventh Filing for the sum of $63,780.00. Hanover bonded this contract for Cryer at the contract price, which contract and bond were duly recorded. A certificate of acceptance was filed on July 18, 1974, for the Seventh Filing work and a clear lien certificate with respect thereto was issued by the Clerk of Court on September 9, 1975.

On October 11,1974, Dunham liened both the Sixth and Seventh Filing work in the sum of $37,186.09, for concrete and pipe furnished the projects, which claim was judicially reduced to $32,334.43. Altex liened both projects, for concrete furnished, on October 22, 1974, in the amount of $30,-545.01.

Watts obtained bonds to secure the Dun-ham and Altex liens and filed suit to cancel the liens. Alternatively, Watts prayed for reduction of his bonds to the amount allegedly due Dunham and Altex, should their claims be held valid. Dunham and Altex reconvened in Watts’ cancellation suit, urging recognition of their liens and alleging their unawareness of two construction contracts. They also alleged that work on both constructions was continuous and that the subdivision was not substantially complete upon recordation of the acceptances filed. Both Dunham and Altex third partied Cryer and Hanover, in solido, for the amount of their respective claims.

On June 4, 1975, Watts filed an amended and supplemental petition, making both Cryer and Hanover defendants in the main demand.

On July 24, 1975, Hanover answered Watts’ original and supplemental petitions, alleging Watts still held some monies owed Cryer on the contracts. Hanover also urged the invalidity of the bond issued by their alleged agent, Virgil L. Seale, Jr., because Seale’s agency had been previously revoked. Additionally, Hanover filed a peremptory exception of no cause of action against Altex, predicated on Altex having asserted a third party demand against Hanover, independent of Watts’ main demand, and therefore in contravention of LSA-C. C.P. Article 1111.

On October 8, 1975, Dunham filed suit Number 11,336 against Watts, Cryer and Hanover, based on the same claims asserted in Dunham’s third party demand in Watts’ action to cancel the liens.

Both suits were consolidated for trial, following which the trial court found the January 28 and 29,1974, acceptances of the Sixth Piling were premature, but that the work on the Sixth Piling was substantially complete for the use for which it was intended, as of the May 8, 1974, acceptance. He also found that the liens filed by Altex and Dunham on October 11 and 22, 1974, against the Sixth Filing work, were untimely and did not preserve a lien against the Sixth Piling work.

As to the Seventh Filing work, the trial court held the July 18, 1974, filing of acceptance was premature, and that said work was complete as of August 26, 1974. On this basis, the trial court held the liens filed against the Seventh Filing on October 11 and 22, 1974, were untimely, and did not meet the requirements of LSA-R.S. 9:4802.

As regards Hanover’s bonds, the trial court held them valid because he found Seale was acting as Hanover’s agent with apparent authority. The trial court also held the third party demands of Altex and Dunham against Hanover to be proper but nevertheless dismissed them as being moot. Dunham’s direct action against Hanover was dismissed on the ground that said cause of action prescribed because Dunham did not bring that suit until October 8, 1975. Altex and Dunham were given judgment by default against Cryer. A retainage of $13,430.38, held by Watts, was equally divided between Altex and Dunham.

Altex and Dunham have appealed. No other party has appealed or answered the appeals of Altex and Dunham.

EFFICACY OF THE ALTEX AND DUNHAM LIENS

Altex and Dunham maintain the trial court erred in not finding the Sixth and Seventh Filings to be one continuous phase of the subdivision development such that the lien filing period should date from completion or acceptance of the Seventh Filing, as provided for by LSA-R.S. 9:4816(A), which recites:

“Any person furnishing service or material or performing any labor for the contemporaneous and continuous construction or improvements of two or more buildings or works by a single general contractor under a single construction contract which buildings or works are situated on adjacent lots or parcels of land of a single owner, may file a single privilege upon all said buildings or works upon the lands on which they are situated. Such a privilege shall secure the payment in principal and interest of the entire amount due for all service, material or labor, furnished and performed, and the costs for recording said privilege. Proof of the performance of labor on, or the delivery of materials to any of the said buildings or works shall be sufficient to establish the performance of labor on, or the delivery of materials to all such buildings or works. Such a privilege shall not attach to or bear upon any building or upon the land on which it is situated, where all materials and service have been furnished and all labor performed upon that particular building or portion of land on which it is situated, more than 60 days prior to the filing of said privilege.' Such a privilege shall not attach to or bear upon buildings or works or the land on which they are situated, constructed or improved by other general contractors on adjacent lots or parcels of land, during a separate phase of subdivision development and pursuant to separate and distinct construction contracts." (Emphasis added.)

The intent of Section 4816(A), above, is to encourage and facilitate subdivision development and construction of houses, and at the same time protect laborers and furnishers of materials for such projects, to the end they might recover the value of their goods or services. Bernard Lumber Co. v. John F. Cerise, 148 So.2d 819 (La. App. 4th Cir. 1963). In such instances where construction is continuous and performed pursuant to a single construction contract, Section 4816(A), above, simplifies the filing of liens and extends the protection initially provided laborers and materialmen under LSA-R.S. 9:4802. The latter part of Section 4816(A), above, refers merely to the privilege granted in the first sentence of the section, namely, those instances where there is a single construction contract. In such cases, a single privilege may be filed on all buildings and works and the lands on which they are constructed. Louisiana Nat. Bank of Baton Rouge v. Triple Con. Inc., 334 So.2d 516 (La.App. 1st Cir. 1976).

Because lien statutes are in derogation of common rights, they must be strictly construed. Refractory Construction, Inc. v. Cities Service Oil Company, 278 So.2d 510 (La.App. 3rd Cir. 1973); McGill Corporation v. Dolese Concrete Company, 201 So.2d 125 (La.App. 1st Cir. 1967).

Because Section 4816(A), above, is expressly limited in application to instances where a single contractor undertakes work under a single construction contract, its terms may not be extended to a situation where two contracts are involved. See McGill Corporation, above.

The obvious intent of Section 4816(A), above, is to protect laborers and materialmen who perform labor or furnish materials or supplies for multiple buildings or works performed pursuant to a single contract under circumstances where they cannot be reasonably expected to identify the precise building or work on which the labor was performed or for which the materials or supplies were furnished. McGill Corporation, above.

We find, however, that Section 4816(A), above, is inapplicable to the case at hand. Filings Six and Seven were not constructed pursuant to a single contract, but pursuant to two separate and distinct recorded contracts which we find to have been let separately for legitimate economic and business reasons. It follows that the lien period applicable to each said contract must be determined pursuant to LSA-R.S. 9:4801, 4802, which provide the delay within which liens must be filed in those cases involving a written and recorded contract and bond. In such instances, timely filing of a lien preserves lienors rights against the works for which he has furnished materials or performed labor. Prescription thereon does not commence until date of registry of the owner’s acceptance or registry of notice of default.

Acceptance of work by an owner is defined in LSA-R.S. 9:4802.1, which pertinently provides:

“Whenever any contract for the repair, construction, erection, construction or improvement of any work on immovable property is entered into in accordance with the provisions of R.S. 9:4802, the owner may have recorded an acceptance of said work, ... or, at its discretion upon substantial completion of the work or of any specified area thereof, upon recommendation of the architect or engineer of the owner. ‘Substantial completion’ is defined for the purposes of this Chapter, as the finishing of construction, in accordance with contract documents as modified by any change orders agreed to by the parties, to the extent that the owner can use or occupy the works or use or occupy the specified area of the works for the use for which it was intended.”

In Lighting, Inc. v. Trans-Gulf Construction Co., Inc., 324 So.2d 454 (La.1975), the Supreme Court interpreted Section 4802.1, above, to mean a building is substantially complete when construction in accord with the contract has proceeded to a point that the owner can occupy the work for its intended use, and also noted:

“An acceptance is a notice of completion. It becomes operative when it conforms to the facts of construction. We think the better view is that a prematurely recorded acceptance is inchoate and becomes operative when the building is complete or substantially complete. At that time, the two essential factors concur: recordation and completion.”

Applying the rule in Lighting, above, we find the trial court properly held that the January 28 and 29, 1974, acceptances of Sixth Filing were premature. Deliveries were made to the job sites subsequent to said acceptances; sidewalks, aggregating $8,751.60 at contract unit prices, remained to be constructed; concrete revetment work, aggregating $1,080.00, had not been installed; and street signs totalling $300.00 had not been erected. Additionally, City-Parish approval, without which no lots could be sold of record, was not obtained until April 26, 1974. It appears, however, that by May 8, 1974, this unfinished work had been completed.

As regards recordation of the Seventh Filing acceptance on July 18, 1974, the record shows that as of that date, approximately 10% of the sidewalks were not laid; a considerable portion of the sidewalk which had been poured was defective and had to be reconstructed; and a few punch list items remained to be completed. It also appears that Watts had repeatedly requested Cryer to finish the sidewalk, replace the defective walk areas and do the key punch items, but without success. Watts eventually finished the work itself, by August 26, 1974, as of which date Watts retained $19,-671.18 of the contract amount due Cryer, and of which Watts expended $6,240.79 completing the project, including correction of defective work performed by Cryer. On September 23, 1974, Dunham delivered 100 feet of pipe at a cost of $724.83, which, though billed to Cryer, was accepted and receipted for by Watts. Appellant urges that this last delivery date fixes completion as of September 23, 1974. We disagree, as did the trial court. The record convinces us beyond doubt that Seventh . Filing was complete as of August 26, 1974, and that as of that date, Watts could effectively take possession of the work and commence the sale of lots in Seventh Filing. The subsequent delivery of such a relatively small amount of material did not extend the effective acceptance date in this instance.

Since Dunham and Altex filed their liens October 11, 1974, and October 22, 1974, respectively, they were not filed within the 30 day period provided by Section 4802, above, and therefore do not accord said parties liens against the lands and improvements involved herein.

HANOVER’S BOND LIABILITY

An owner is not legally required to enter into a written contract to construct a private work. Neither is an owner required to record a written contract for such work or furnish bond therefor. Where, however, such a written contract is recorded and bond secured therefor, the law accords a lien and privilege against the land and work involved in favor of a laborer who performs work on the project, or a materialman who furnishes materials and supplies, when the laborer or materialman timely files his lien. LSA-R.S. 9:4802.

In such instances, the liability of the surety is provided for in LSA-R.S. 9:4803 and 9:4814, which pertinently recite:

LSA-R.S. 9:4803. “Subject to the limitation provided in R.S. 9:4814, where the owner has required the bond herein provided, the surety thereon shall be liable in solido with the contractor for all the labor and materials used in the said work of improvements, and the costs of recording valid privileges up to the amount of the bond, and the cancellation and erasure of the inscription of the said contract . . . shall not affect the liability of the said surety on the said contract for such labor and materials, as to which labor and material the said surety shall be bound to the same extent as the said contractor LSA-R.S. 9:4814. “A. Except as provided in Subsection C. of this section nothing in this Sub-part shall be construed as to deprive any claimant of his right of action against the surety signing and (sic) [any] bond furnished in connection with any building contract or sub-contract, or against the principal obligor thereunder, which right of action shall accrue at any time after maturity of the claim of the said claimant.
“B. . . . Any action against the surety must be brought within one year from the registry of acceptance of the work or of notice of default of the contractor. When claimants shall not have preserved their privileges and shall afterwards bring a direct action against the surety, they shall have priority as between themselves after payment of all recorded claims against the balance for which the surety is liable in the order of the filing of their respective suits.” (Emphasis by the court.)

The cited provisions do not require a laborer or materialman to file a claim within the 30 day period mentioned in Section 4802, above, as a condition precedent to a direct action against a surety. Neither is a laborer or materialman required to lien a project to obtain personal judgment against a contractor with whom he is in privity. American Creosote Works v. Aetna Casualty & Surety Company, 167 La. 601,120 So. 21 (1929); Apex Sales Company v. Abraham, 201 So.2d 184 (La.App. 4th Cir. 1967). Prescription on a direct action against a surety commences, however, upon filing of acceptance by the owner and suit against the surety must be brought within a year of the filing of the owner’s acceptance.

Applying these principles to the case at hand, we find that Watts instituted its suit on January 6, 1975. Altex and Dunham answered Watts’ demands and filed third party claims against Hanover on January 29 and January 30, 1975, respectively. On June 4,1975, Watts amended its petition to make Hanover a defendant in Watts’ principal demand.

LSA-C.C.P. Article 1153 recites that when an action or defense asserted in an amended petition or answer arises out of the conduct, transaction or occurrence alleged or attempted to be alleged in an original pleading, the amendment relates back to the date of filing of the original pleading. Though Hanover was not made defendant in Watts’ original petition filed January 6, 1975, the third party demands against Hanover asserted by Altex and Dunham on January 29 and January 30, 1975, and the amendment of Watts’ petition on June 4, 1975, to include Hanover as defendant in Watts’ main demand, have the effect of dating the claims of Altex and Dunham against Hanover as of January 29 and January 30, 1975, respectively, the dates said third party demands were filed, which were within a year of acceptance of the contracts involved herein. The third party demands of Altex and Dunham against Hanover are not incidental demands. Incidental demands are reconvention, intervention and demands against third parties. LSA-C.C.P. Article 1031. The demands of Altex and Dunham against Hanover are not in reconvention against plaintiff Watts. They are not intervention because both Altex and Dunham were made defendants in Watts’ main demand. They are not third party demands because Hanover is not alleged to be warrantor of Altex or Dunham and neither is Hanover asserted to be liable with Altex and Dunham on Watts’ main demand. LSA-C.C.P. Article 1111.

In legal effect, the third party demands of Altex and Dunham against Hanover are cumulation of actions. LSA-C.C.P. Article 463. We deem Hanover’s exception of no cause of action filed against Altex to be an exception of improper cumulation. Although Hanover urges it filed a similar exception against Dunham, no such exception appears of record. LSA-C.C.P. Article 464 provides that an exception of improper cumulation must be sustained and the action dismissed when the exception is based on lack of jurisdiction or improper venue. In all other instances, the trial court may order separate trial of the improperly cumulated action, or require plaintiff to elect the action with which he will proceed. In this case, the trial court did not pass on Hanover’s exception of no cause of action (improper cumulation). Under the jurisprudence, the exception is deemed to have been overruled. Melde Tile Roofing Co. v. Compac Homes, Inc., 92 So.2d 735 (La.App. Orleans, 1957); Succession of Foster, 240 La. 269, 122 So.2d 96 (1960). Moreover, Dunham’s separate suit against Hanover was consolidated with Watts’ action and the two tried as one with the consent of all concerned, including the third party demands of Altex and Dunham in Watts’ action.

The judgment of the trial court decreeing Hanover’s bond valid and overruling Hanover’s exception of no cause of action (improper cumulation of action) against Altex has become final in these respects, considering Hanover has neither appealed nor answered the appeals taken by Altex and Dunham. Assuming arguendo, the trial court erred in holding the bond valid and denying Hanover’s exception of improper cumulation, no relief can be afforded Hanover therefrom under the circumstances. LSA-C.C.P. Articles 2083, 2133.

We find that the demands of Altex and Dunham against Hanover were timely filed and that the trial court erred in deciding otherwise.

THE THIRD PARTY DEMANDS OF ALTEX AND DUNHAM

The record discloses that Dunham furnished materials for subject construction projects on which there is a balance due in the sum of $32,334.43, and that Altex furnished materials on which a balance is due in the amount of $30,545.01. The trial court divided equally, between Altex and Dunham, the sum of $13,430.38, which the court found to have been retained by Watts out of monies due Cryer for work performed, giving Altex and Dunham the sum of $6,715.19 each. It follows that Dunham is entitled to judgment against Hanover and Cryer in the sum of $25,619.24, in soli-do, and Altex is entitled to judgment against Hanover and Cryer in the amount of $23,829.82, in solido.

DECREE

The judgment of the trial court rejecting the claims of Altex and Dunham against Hanover is reversed and judgment rendered herein in favor of Altex against Hanover and Cryer in the sum of $23,829.82, in soli-do, with legal interest from date of judicial demand until paid, and in favor of Dunham against Hanover and Cryer in the sum of $25,619.24, in solido, with legal interest from date of judicial demand, until paid; in all other respects the judgment is affirmed, all costs of these proceedings to be paid by Cryer and Hanover.

Affirmed in part, reversed in part and rendered.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    HULLINGHORST INDUSTRIES, INC. v. KAL-DIE CASTING CORPORATION.
    No. 11406.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Charles S. McCowan, Jr., John Dale Powers, Baton Rouge, of counsel for plaintiff-appellee, Hullinghorst Industries, Inc.
    Boris F. Navratil, Baton Rouge, of counsel for defendant-appellant, Kal-Die Casting Corp.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Hullinghorst Industries, Inc., to recover the sum of $5,000.00 paid to Kal-Die Casting Corporation under a contract providing for the manufacture of specially designed and cast scaffolding pins; and to recover from Kal-Die the sum of $3,078.96 paid another manufacturer for specially designed cadmium plated scaffold bolts to be used with the pins. The scaffolding pins manufactured by defendant were allegedly defective.

After trial on the merits, the trial court rendered judgment in favor of Hullinghorst Industries in the amount of $8,078.96. From this judgment, Kal-Die has appealed.

Plaintiff, Hullinghorst Industries, Inc., is a domestic corporation engaged in the sec-tionalized metal scaffold rental business in Baton Rouge. The scaffolding maintained by plaintiff is made of tubular bed stand sections which can be stacked vertically and cross-braced to form scaffolds of any desired width and height. In order to join the vertical sections, plaintiff employs special expandable pins, made in England and called “Bleacher” pins, which are inserted into the corner posts of the stacked sections. These pins consist of two longitudinal halves joined midway by a bolt, so designed that when the bolt is rotated the two halves are driven apart. When the pins are inserted into the corner posts of the vertical scaffolding sections and expanded by means of the bolt, the pins hold the adjacent vertical sections in proper alignment and rigidly stable.

Because of the long delivery schedules involved with the Bleacher pins made in England, plaintiff decided to secure its own Bleacher-type pins and furnish these pins to its customers. To this end, plaintiff contracted with Scottco Tools and Manufacturing Company for the manufacture of the specially designed center bolts at a cost of $3,078.96 and with the defendant for the manufacture of the pin halves. The latter contract is the subject of the present suit.

On April 12,1974, the defendant received a letter from plaintiff seeking a price quotation for the manufacture of the Bleacher-type pin halves. Along with the letter, defendant received one of the halves of an English Bleacher pin. On April 15, 1977, the defendant sent to plaintiff a written price quotation, which listed the price of the dies needed for tooling-up to east the pins and the various prices for different quantities of the castings.

Thereafter, Donald DeHaan, defendant’s president, made a personal trip to plaintiff’s office in Baton Rouge and met with plaintiff’s president, Armand Hullinghorst, and plaintiff’s field salesman, Kenneth Beckley. The testimony regarding what transpired during this meeting is conflicting.

Both Hullinghorst and Beckley testified that DeHaan was given a complete tour of plaintiff’s office, yard and operations; shown a complete Bleacher pin; and shown and told of the purpose of the pins in plaintiff’s business. Additionally, both testified that DeHaan assured them that defendant would make a pin “just like” the English Bleacher pin, both as to physical and dimensional characteristics.

DeHaan denies this. He testified that he was unaware of the intended use of the pins; did not inquire; and never did see the complete pin.

No formal written contract was ever signed by the parties.

In any event, defendant thereafter began the process of tooling-up, which involved fashioning the dies needed to manufacture the pin halves. Plaintiff paid the sum of $5,000.00 for the construction of the dies. Defendant then manufactured and shipped to plaintiff 2,800 sets of castings. Upon receipt of the castings, the specially designed bolts were inserted and the completed pins were furnished to plaintiff’s customers.

Almost immediately, plaintiff began receiving complaints that the pins were breaking whenever the center bolt was tightened. Plaintiff recalled the pins and returned them to the defendant. A later study of the mineral composition of the castings revealed that they differed from the English prototype by having greater porosity and an excess in iron content. This increase in porosity and iron content greatly reduced the strength of the pins and consequently their utility.

Plaintiff refused to pay the invoices for the castings and instituted this suit to recover the amount paid the defendant for tooling-up, and to recover the cost of the bolts rendered useless by the defects in the pins.

The trial judge did not favor us with the reasons underlying his decision. However, the evidence and testimony in the record unquestionably establishes that the pins manufactured by the defendant contained inherent defects which rendered them useless, and that they differed radically from the English prototype with regard to their structural composition.

Kal-Die maintains that any compositional defects should be attributable to plaintiff’s failure to provide detailed mineral specifications and that any loss occasioned by such failure should be borne by the plaintiff.

The trial judge, obviously relying on the testimony of Hullinghorst and Beckley, placed the responsibility for the failure of the pins with the defendant. The aforementioned testimony clearly establishes that DeHaan, and consequently the defendant, had knowledge of the purpose and intended use of the pins to be manufactured. This knowledge, coupled with the defendant’s superior expertise in metals and castings, should have alerted defendant to the inadequacies of the metal in the pin castings. Accordingly, we find no error in the trial court’s conclusion.

Secondly, Kal-Die contends that, assuming the castings were defective, the trial court erred in awarding plaintiff the cost paid for the dies involved in the tooling-up process. Defendant argues that there were in reality two contracts between the parties: one for the manufacture of the dies and another for the manufacture of the castings themselves. Kal-Die maintains that there are no defects in the dies and that the first contract was fully and satisfactorily performed when plaintiff paid for the dies.

We find no merit in this contention as the evidence in the record convincingly establishes that there was only one contract between the parties. Hullinghorst testified that the sole purpose for his dealings with the defendant was to have his Bleacher pin manufactured. He stated that the dies in the tooling-up process were a necessary step leading to the desired end result, and that he had no use for the dies independent of defendant’s manufacturing operation. We find no support for defendant’s contention in the fact that the dies were paid for separately from the castings. We view this as merely one of the exigencies of the business world and not as an indication of the formation of two separate contracts. Therefore, we reject defendant’s second contention.

Finally, defendant contends that the trial court erred in permitting plaintiff to recover from defendant the cost of the specially designed center bolts used with the castings.

The record is clear that the bolts were manufactured for use with the castings made by defendant. The defendant was undoubtedly aware that such bolts were needed to complete the Bleacher-type pin and that the bolts would have to be specially manufactured. The testimony is uncon-tradicted that the bolts were rendered useless by the defects in the castings and are therefore worthless. Accordingly, we do not find that it was error for the trial court to allow plaintiff to recover from the defendant the cost of the specially designed bolts rendered worthless by the defects in defendant’s castings.

Additionally, as has often been stated by this Court and all the appellate courts of this State, the trial court’s factual findings are entitled to great weight and will not be disturbed on appeal in the absence of a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The defendant has failed to show that the trial court committed manifest error in this instance.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    MERRYDALE GLASS WORKS, INCORPORATED v. Mike MERRIAM.
    No. 11418.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      Michael A. Patterson, Baton Rouge, of counsel for plaintiff-appellant, Merrydale Glass Works, Inc.
    Joseph E. Juban, Baton Rouge, of counsel for defendant-appellee, Mike Merriam.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Suit was instituted by Merrydale Glass Works, Inc., plaintiff-appellant, against Mike Merriam, defendant-appellee, to recover the contract price on two oral contracts for the installation of certain glass products. The defendant answered claiming that the plaintiff was not in compliance with the contracts and reconvened seeking damages for the cost of repairing and replacing alleged defective work.

In the fall of 1975, Merrydale entered into the contracts with the defendant to install certain glass products in his home. The first agreement was for the installation of sixteen pieces of cathedral glass in the front of the house for a price of $614.80. The second agreement was for the installation of mirrors covering some of the walls, the ceiling and two night tables in the bedroom, and for the installation of mirrors on the walls and doors of the lavatory area in the bathroom. The agreed price for the installation of all mirrors was $3,171.

Merrydale completed installation of the cathedral glass and began the process of installing the mirrors. Difficulties were encountered with the installation of the mirrors because the walls , were not plumb. Merrydale attempted to rework portions of the job upon complaints by defendant and his wife. Dissatisfaction expressed to the plaintiff by defendant related to chipped and uneven edges, spaces between the mirrors, and the installation of numerous small panels instead of large panels as requested. While contracting with the defendant Mer-rydale had said that all of the mirrors would be cut on the job to facilitate fitting the glass. However, none of the mirrors installed were cut on the job.

After approximately six weeks of work on the second contract, when defendant concluded that Merrydale was not performing satisfactorily, he told Merrydale to discontinue the job. Subsequently, in order that the light fixtures could be installed, the defendant hired Wooddale Glass to replace portions of the mirrors in the lavatory area at a cost of $833.41.

At trial, Merrydale contended that the work was substantially performed in a proper manner but that it was prevented from finishing the job. The defendant claimed, however, that the work done was unacceptable. In this regard, the photographs in evidence and the testimony does establish that there were numerous chips in the edges of many of the mirrors installed, especially in areas surrounding light switches and electrical receptacles. It was further established that many of the mirror panels installed either had gaps between them or were out of alignment. Efforts were made to rectify the chips and gaps by applying a caulking compound. Finally, the record establishes that many small panels were used instead of larger panels as requested by defendant.

The trial court found that the first agreement for the cathedral glass was substantially completed and awarded the plaintiff the full contract price of $614.80. With regard to the second agreement on the mirrors, the trial court found that in terms of the surface covered, there was substantial completion, but that there was not substantial completion in “a good, workmanlike manner.” The court allowed the plaintiff a partial recovery on the second agreement of $636.00 for the work done on the ceiling only. Prom these awards to the plaintiff, the court subtracted the $833.41 paid to Wooddale for the replacement work in the lavatory area. This resulted in a net judgment of $417.39.

The contracts in question are governed specifically by the Louisiana Civil Code articles dealing with works by the job. La.-C.C. arts. 2756, et seq. Implicit in every contract for work or services is the agreement that the work will be performed in a workmanlike manner free from defects attributable to either faulty materials or poor workmanship. Grather v. Tipery Studios, Inc., 334 So.2d 758 (La.App. 4th Cir. 1976); Calcon, Incorporated v. Young Companies, Inc., 322 So.2d 883 (La.App. 1st Cir. 1975); Neel v. O’Quinn, 313 So.2d 286 (La. App. 3rd Cir. 1975).

Relating to the failure of the contractor to execute the undertaking, Louisiana Civil Code Article 2769 provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Article 2769 is an exception to the general rule applicable to commutative contracts that no payment is due under a contract in the absence of total performance. Lambert v. Jones-McCloskey Construction, Inc., 311 So.2d 488 (La.App. 4th Cir. 1975); G. Salvaggio & Co., Inc. v. Delta Heights, Inc., 277 So.2d 754 (La.App. 4th Cir. 1973).

Under Louisiana Civil Code Article 2769 and the jurisprudence interpretive thereof, a contractor who has substantially performed a building contract is entitled to recover the contract price, less whatever damages the owner proves to be attributable to the breach of the contract. Franklin v. Mackie, 221 So.2d 360 (La.App. 4th Cir. 1969); Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir. 1976); Neel v. O’Quinn, supra.

The question of whether a contractor has substantially performed the contract is one of fact. Thus, the trial court’s decision should only be overturned on a showing of manifest error. Henson v. Gonzalez, supra. Among the factors to be considered in determining whether substantial performance under the contract has been accomplished are the extent of the defect or nonperformance, the degree that the purpose of the contract is defeated by nonperformance, the ease of correction of the defect, and the benefit derived by the owner from the work performed. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Franklin v. Mackie, supra.

On the other hand, if it is determined that the contract for work by the job has not been substantially performed, the contractor’s recovery is limited to quantum meruit. Neel v. O’Quinn, supra. See, also, La.-C.C. arts. 2293, et seq.

In the instant case the trial judge inspected the premises to determine the extent of performance under the agreements. See Bergeron v. Parish Lumber Home Improvements, Inc., 255 So.2d 163 (La.App. 1st Cir. 1971). Based on the evidence and testimony presented, the trial court’s conclusion that the contract for installation of the cathedral glass was substantially performed is correct and Merrydale is entitled to recover the contract price of $614.80.

However, the trial court failed to allow the defendant to deduct from the contract price the cost of replacing one of the sixteen panels which the evidence indicates probably was broken by the plaintiff. The deduction of one-sixteenth of the contract price of the cathedral glass leaves $576.37.

After inspecting the premises and hearing the testimony of the parties, the trial court apparently concluded that the contract to install the mirrors was not substantially performed and allowed the plaintiff to recover only the value of the work done on the ceiling, or $636.00. There is sufficient evidence in the record that the defects defeated to a serious degree the purpose of the contract and that the corrections of the defects could only be accomplished by replacing most of the panels installed, which evidence supports the trial judge’s conclusion. Therefore, the findings of the trial court that there was not substantial performance of the second contract and that the plaintiff was only entitled to $636.00 as quantum meruit are not manifestly erroneous.

The trial court allowed the defendant to deduct $833.41 as the cost of replacing the mirrors in the lavatory area. However, the court did not allow Merrydale to collect the contract price for this portion of the work. Moreover, it was not shown that the defendant was damaged by the installation of this portion of the work to the extent that the replacement of the lavatory mirrors caused the defendant additional cost. See Southern Accoustics, Inc. v. Ritman, 272 So.2d 417 (La.App. 2nd Cir. 1973). Therefore, the defendant cannot subtract the cost of replacing the lavatory mirrors from the amount awarded Merrydale for the work done to the ceiling.

For the foregoing reasons, the judgment of the trial court in favor of the plaintiff is amended to award plaintiff the sum of $1,212.37, and in all other respects said judgment is affirmed. The costs of this appeal are assessed equally to the appellant and the appellee.

AMENDED AND, AS AMENDED, AFFIRMED.


author: COVINGTON, Judge.

text:
    Simon JACKSON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION.
    No. 11431.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Carvel A. Sims, C. Alvin Tyler, Baton Rouge, for plaintiff-appellant, Simon Jackson.
    Foye L. Lowe, Jr., Baton Rouge, for defendant-appellee, State of Louisiana, Department of Public Safety, Driver’s License Division.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

Simon Jackson instituted this suit on November 12,1976, to obtain judicial review of an order of the Louisiana State Department of Public Safety, Driver’s License Division, suspending his driver’s license for one year. The petitioner sought a temporary restraining order and an order to the Department to issue him a restricted license. After hearing, the trial court denied the petitioner’s demands, and he has appealed.

The basis for the petitioner’s suit is LSA-R.S. 32:415.1, which allows the granting of a restricted license to a licensee under certain circumstances if the revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.

The evidence discloses that the petitioner was convicted or entered a plea of guilty of driving while intoxicated on three different occasions, August 24, 1971, March 7, 1973, and December 15, 1975.

In accordance with LSA-R.S. 32:414, the petitioner’s license was revoked by the Department following both the second and third convictions. Following the last revocation, the petitioner instituted this suit to obtain a restricted license.

The Department contends that the petitioner is not entitled to a restricted license in view of the fact that his license has been revoked more than once. In support of its contentions, the Department relies upon LSA-R.S. 32:415.1(A)(1), which provides in pertinent part as follows:

“Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person within thirty days after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family.”

On the other hand, the petitioner argues that the “first time only” restriction found in the foregoing provision is not applicable to him. In support thereof, he cites LSA-R.S. 32:415.1(A)(2), which reads as follows:

“Notwithstanding the provisions of Paragraph (1) of this Subsection, any person whose license is suspended, revoked, or cancelled shall have the right to file an application for a restricted license on the grounds of economic necessity within ninety days after the effective date of this Section.”

The petitioner argues that Subsection (A)(2) establishes an exception to Subsection (A)(1), by permitting any licensee, regardless of the number of times his driver’s license has been revoked, to apply for a hardship license within 90 days of the effective date of the statute. He argues that he is entitled to prosecute the instant action even though his license has been revoked more than once.

In dismissing the suit the trial judge stated:

“Subsections (A)(1) and (A)(2) appear to be inconsistent. While (A)(1) specifically allows a hardship appeal following revocation of a person’s driver’s license ‘for the first time only’, (A)(2) would appear to grant that same right regardless of the number of revocations. The issue before the Court is the reconciliation of these two apparently conflicting provisions.
“In this regard we note the following guidelines for statutory construction set forth in Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962):
‘In construing a statute, the primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately; meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered.’ 137 So.2d at page 339.
“Furthermore, apparently contradictory provisions of law must be reconciled and given effect when possible. Raborn v. Secretary of State, 204 So.2d 630 (La. App. 1st Cir. 1967), Writ refused 251 La. 681, 205 So.2d 443 (1967). Accordingly, we cannot simply ignore one of the subject provisions in favor of the other. Rather, we must harmonize both so that each may be given effect.
“Applying the above rules of construction to the instant statute, we conclude that Subsection (A)(2) applies to persons whose driver’s licenses have been revoked for the first time only, as provided for in Subsection (A)(1).
“After considering the intent of the entire Act, we conclude that Subsection (A)(2) is what is commonly referred to as a ‘grandfather clause’. Subsection (A)(1) grants a hardship privilege to persons whose licenses were revoked the first time, but only if they apply therefor within thirty days after their initial notification of the revocation by the Department. Subsection (A)(2) was obviously included in the Act to insure that first revokees whose licenses were revoked pri- or to the enactment of the Act would have the same right as those whose licenses were revoked subsequent thereto. “To adopt plaintiff’s interpretation and declare that Subsection (A)(2) grants a right to a hardship license regardless of the number of revocations would be an unwarranted broadening of the clear intent of Subsection (A)(1).
“As the evidence discloses that the plaintiff’s license has been revoked more than once by the Department, he has no right to the relief sought herein. For the above and foregoing reasons, the petition for an economic hardship driver’s license by plaintiff, Simon Jackson, is hereby dismissed at his costs.”

We agree with the holding of the trial judge and the reasons for judgment expressed by him. Accordingly, we adopt his reasons and affirm. The judgment appealed is affirmed at petitioner-appellant’s costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    TRI-SOUTH MORTGAGE INVESTORS v. NEW COMMUNITIES, INC.
    Nos. 11440, 11477.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearings Denied Aug. 24, 1977.
    Writ Granted Sept. 30, 1977.

      Donald A. Meyer, Robert P. Chatelain, New Orleans, for plaintiff and appellee.
    Darryl J. Carimi, Gretna, E. Bradford Holbrook, Jr., New Orleans, for defendant and appellant.

      Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an executory process. In suit number 11440, on the docket of this court, defendant, New Communities, Inc. (New), and intervenor, J. E. F. Developers, appeal from a judgment of the trial court dismissing an exception of no right of action as well as dismissing a petition for injunction.

Suit number 11477 on the docket of this court is concerned with alternative writs of mandamus, certiorari and prohibition issued on the application by Tri-South Mortgage Investors (Tri-South) in connection with the rule to test a surety on a suspensive appeal bond.

Tri-South, styling itself as a real estate investment trust (REIT) authorized to appear pursuant to LSA-R.S. 12:302 filed this executory process to enforce a mortgage with an alleged $2,363,834.24 balance together with accrued and unpaid interest affecting certain immovable property located in Terrebonne Parish, Louisiana, near Morgan City.

In filing the exception of no right of action, New contends that neither the plaintiff nor any of its trustees are qualified to do business in Louisiana, and thus have no right to avail themselves of the courts of this state, and further, that the trustees and not the trust are the proper party plaintiffs pursuant to LSA-C.C.P. art. 699.

Plaintiff argues that despite the exception of no right of action filed by New, a REIT is not required to qualify to do business in Louisiana if its activities fall within the purview of LSA-R.S. 12:302. This particular statute provides a general exemption to foreign corporations or business associations from qualifying to do business in this state for the transactions of certain business activities. One of the businesses exempted is a “real estate investment trust as defined by R.S. 12:491 et seq., or a business or trust company organized under the laws of any state * * * .” We agree generally with plaintiffs argument, that because it is either a REIT or a trust company organized under the laws of a sister state, it is exempt from qualifying to do business in Louisiana for the purpose of making loans, acquiring mortgages, and acquiring immovable property securing such loans under foreclosure sale or in lieu of foreclosure. LSA-R.S. 12:302 K(l) & (3). However, the second portion of the exception of no right of action concerns itself not with whether plaintiff must be qualified to do business in Louisiana, but rather, that the trustees are the proper party plaintiffs rather than the trust in this proceeding, and this portion of the exception has no bearing on being qualified to do business in Louisiana. Stated another way, the exception very simply argues that the plaintiff has not complied with the procedural rules of this state.

The issue then is whether Tri-South is a real estate investment trust and recognized as such by the laws of Louisiana. TriSouth is a trust organized and existing under the laws of the state of Massachusetts. In the course of its business, it negotiated and ultimately executed various documents with New, culminating in the mortgage upon which this executory process is based.

The general rule in Louisiana is that “the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate.” LSA-C.C.P. art. 699. However, LSA-R.S. 12:492 C allows a REIT as defined by LSA-R.S. 12:491 the “right to sue and be sued.” Therefore, it can be seen that the legislature has made an exception to the general rule as established by LSA-C.C.P. art. 699 as it relates to a REIT, in that it has allowed this particular type of trust to sue in its own name rather than have the trustee be the party plaintiff; it .has accorded to it juridical personality.

LSA-R.S. 12:491 B provides:

“A real estate investment trust is a trust created at law by an instrument under which property is held and managed by trastees for the benefit and profit of such persons as may be or may become the holders of transferable certificates evidencing beneficial interests in the trust estate, the holders of which certificates are entitled to the same limitation of personal liability extended to stockholders of private corporations, recognized as a real estate investment trust by the Internal Revenue Code of 1954, as amended.” (emphasis supplied)

The criteria established by the legislature to be recognized as a REIT in Louisiana is the same criteria that must be met by such a trust to be taxed as such under the Internal Revenue Code.

We conclude that the legislature in enacting LSA-R.S. 12:491 et seq., and in particular setting the criteria as that established by the Internal Revenue Code intended this criteria to be applicable not only to REIT’s organized in Louisiana but as well as to REIT’s organized in sister states but doing business in Louisiana, otherwise, it would be treating domestic REIT’s more strenuously than foreign REIT’s. Therefore, before it can sue in its own name in Louisiana rather than the name of its trustee or trustees, it must meet the criteria of a REIT as established by LSA-R.S. 12:491. The question remaining is whether TriSouth was a REIT recognized as such by the Internal Revenue Code at the time that it filed the petition for executory process on January 16, 1976.

At the time that LSA-R.S. 12:491 et seq. was enacted, as well as at the time suit was filed, the Internal Revenue Code, and in particular Section 856, provided that in order for a trust or other entity to be taxed as a REIT, it must elect this tax status, and it must also meet certain objective requirements. Once the election was made, it was irrevocable for the tax year and all succeeding years. However, as pointed out by the expert witnesses, if the REIT failed to meet the objective requirements in any one tax year, then it was not taxed as a REIT in that taxable year, but rather was taxed as it ordinarily would have been taxed. If in the following year it again met the objective requirements of the Internal Revenue Code, then it was again taxed as a REIT.

Plaintiff bases its entire opposition to the exception of no right of action on the proposition that once the election to be taxed as a REIT is made, it is irrevocable, and thus the trust is a REIT until liquidation, dissolution or reorganization occurs. We do not, however, agree that this is what the Louisiana Legislature intended in the enactment of LSA-R.S. 12:491 when it provided that a real estate investment trust would be one that is recognized as a real estate investment trust by the Internal Revenue Code of 1954. We conclude that what the legislature intended was that the word “recognized” be synonymous with the word “taxed.” Therefore, we interpret LSA-R.S. 12:491 to mean that as long as the trust is taxed by the Internal Revenue Service as a REIT, then it is recognized in Louisiana as a REIT. Otherwise, the special benefits and provisions granted to REIT’s by LSA-R.S. 12:491 et seq. could be circumvented by simply making the election and being taxed as such initially by the Internal Revenue Service, but never being taxed as such again. We cannot conceive that the legislature would have ever intended such a result. We reach this conclusion understanding full well that on October 4, 1976, the Tax Reform Act of 1976 was signed into law which in part allows the revocability of the election to be taxed as a REIT, thus destroying the irrevocability concept.

The factual question that then must be answered is whether plaintiff was to be taxed as a REIT in the year that suit was filed. Mr. Stanley H. Rose, III, a tax specialist with Price, Waterhouse & Company, of Atlanta, Georgia, who was responsible for the preparation of the tax returns of plaintiff, and the expert witness offered by Tri-South, testified that the plaintiff did not meet the requirements to be taxed as a REIT for 1975, and that in answer to a question by the court, he stated that from his knowledge of the first and second quarters of 1976, “it will not be taxed as a REIT for 1976.” We realize full well that when Mr. Rose testified before the trial court, the plaintiffs tax return for 1976 had not as of that time been filed, however, we must conclude from the testimony of Mr. Rose that Tri-South would not be taxed as a REIT for 1976. Therefore, since plaintiff would not meet the requirements of the Internal Revenue Code for the tax year of 1976, the year suit was filed, it could not avail itself of the special provisions of suing in its own name rather than the name of its trustee or trustees.

The above discussion of the exception of no right of action may seem overly detailed and technical, however, inasmuch as executory process is a harsh remedy, the defendant in an executory process has every right to expect and demand that plaintiff proceed properly. Stated another way, in an executory process, plaintiff must dot all his “i’s” and cross all his “t’s”, otherwise he may find himself out of court.

We realize of course that “when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.” LSA-C.C.P. art. 934. We do not deem this such a situation as to allow an amendment to substitute the proper party plaintiff.

In view of the foregoing, it is unnecessary for us to consider plaintiffs use of executory process, and the alternative writs issued in suit number 11477 have now become moot.

Therefore, for the above and foregoing reasons the judgment of the trial court on the exception of no right of action is reversed, and plaintiff’s suit is dismissed. All costs in both the trial and this court are taxed to plaintiff-appellee.

REVERSED AND DISMISSED.


text:
    Ernest GOFF et ux. v. Anthony C. OCCHIPINTI et al.
    No. 11441.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.

      Guy A. Módica, Baton Rouge, of counsel for plaintiff-appellant Ernest Goff, et ux.
    Robert W. Smith, Baton Rouge, of counsel for defendant-appellee Anthony C. Oc-chipinti, et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This case involves an automobile accident. Liability was stipulated, and the only issue at trial was quantum. The trial judge rendered judgment in favor of the plaintiff, Ernest Goff, and against the defendants, Anthony C. Occhipinti and United Services Automobile Association, jointly and in soli-do, in the full sum of $1,523.48 for medical expenses, automobile damage and car rental, subject to a credit of $233.02 which had been paid previously and in favor of Mrs. Goff against the same defendants in the amount of $3,000.00 for general damages. Plaintiffs appealed.

Plaintiffs-appellants believe that the trial court erred in refusing to allow plaintiffs’ claim for the value of housekeeping services which they allege will be necessary because Mrs. Goff is unable to perform household work due to her injuries and also erred in granting a new trial for the sole purpose of allowing the defendants to introduce the automobile insurance policy insuring Anthony C. Occhipinti issued by United Services Automobile Association.

The original suit filed by Mr. and Mrs. Goff asked for damages in the amount of $4,750.00 for Mr. Goff for medical expenses, property damage and depreciation, and for loss of use and inconvenience, and $10,-000.00 for Mrs. Goff for past and future pain and suffering. Plaintiffs’ first witness was their son Paul Goff. When counsel for plaintiffs attempted to show the inability of' Mrs. Goff to perform housework, this testimony was timely objected to on the grounds that this would be an enlargement of the pleadings. Plaintiffs counsel asked to amend his pleadings to include a claim for damages for the inability of Mrs. Goff to perform housework. The court did not allow the request, but took it under advisement and further stated that he “doubted seriously if I will permit the amendment.” The court then allowed the testimony subject to the objection.

In written reasons for judgment, the trial court allowed amendment to the pleadings which increased damages by $282,000.00, but he made no award for housekeeping expenses. The trial judge found that the back complaints of Mrs. Goff which came to light several weeks after the accident were not causally connected to the accident in question but related to a back problem existing prior to the accident. He also stated, “throughout the trial of this matter, the court had the distinct impression that plaintiffs were attempting to maximize and exaggerate Mrs. Goff’s complaints.” The trial judge’s award of general damages was for tenderness over her right aehilles tendon and for the stomach soreness and dizziness which she suffered on the date of the accident and for the possibility of an aggravation to pre-existing osteoarthritis. ■

There is ample evidence in the record upon which the trial judge could base his factual conclusions and we find no abuse of discretion in the amount of the award. Canter v. Koehring Co., 283 So.2d 716 (La. 1973) and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

It would appear that in light of the foregoing, plaintiffs’ objection to the trial court granting a new trial for the purpose of defendants introducing the insurance policy in question into evidence is now moot for the reason that the judgment rendered by the trial court and affirmed here is within the policy limits. Furthermore, LSA-C.C.P. art. 1973 provides that “a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” The fact that the trial judge, after taking the case under advisement, allowed amendment to the pleadings which increased plaintiffs’ demand beyond the policy limits appears to be good reason for allowing a new trial for the limited purpose of introducing the insurance policy.

For the above and foregoing reasons, the judgment of the trial court will be affirmed, appellants to pay all costs of this appeal.

AFFIRMED.


text:
    Paul BODI et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 11442.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      Ronald A. Curet, Hammond, for Paul Bodi plaintiff appellee.
    Robert E. Leake, Jr., New Orleans, for Government Employees Ins. defendant appellant.
    John D. Kopfler, Hammond, for Tucker Jones defendant-third-party plaintiff.
    W. Carl Roberts, Thomas S. Halligan, Dept, of Justice, Baton Rouge, for State of Louisiana & La. Air National Guard.
    Charles J. Ferrara, Metairie, for Maryland Cas. Co. Intervenor.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by plaintiffs, Paul Bodi and Julius Bodi, individually and on behalf of his minor son, Dave Bodi, against Government Employees Insurance Company (GEICO) and its alleged insured, Tucker S. Jones and Maryland Casualty Company (Maryland) under the uninsured motorist provisions of the plaintiff’s insurance contract. Subsequently, the State of Louisiana, through the Louisiana Air National Guard was made a defendant as the employer of Jones, who was engaged in the proper course and scope of his employment at the time of the accident. GEI-CO denied coverage contending the insurance policy issued to Jones had been canceled some time prior to the accident. Jones third partied GEICO for recovery under the policy as well as asking for reasonable attorney fees for failing to provide a defense. Maryland was dismissed from the suit, but subsequently intervened to recover the amount paid out under the uninsured motorist provisions of the policy.

From a judgment in favor of plaintiffs, Paul and Dave Bodi and against Tucker Jones, the State of Louisiana through the Louisiana Air National Guard, and GEICO, in favor of Maryland recognizing its claim to be paid in preference to plaintiffs, and in favor of Jones against GEICO on his third party demand, though not for attorney fees, GEICO and Jones have appealed.

The record points out that on December 17, 1968, at approximately 8:30 A. M. Paul Bodi was operating, in a westerly direction on the Old Covington Highway in Hammond, Louisiana, an automobile owned by Paul and Julius Bodi, d/b/a Bodi’s Body Shop, a commercial partnership, with Dave Bodi as the only passenger, when it was struck by an automobile owned and operated by Tucker Jones at the intersection with South Holly Street.

Paul Bodi did not remember anything at all of what happened on the day of the accident. In fact, he did not even remember getting up that morning. He vaguely remembered the day before the accident, and really only remembered subsequent to the accident when he was in the hospital.

Dave Bodi testified that they were one-half a car length through the intersection when he saw the Jones car moving at a blurred speed. He could not estimate the speed, but there was no attempt to turn made by the Jones vehicle. The Bodi vehicle was approximately one-fourth of a car length past the midway point of the intersection when the collision occurred.

Jones was traveling north on South Holly, and testified that he was going to turn right at the intersection, stopped before entering it and did not notice the oncoming Bodi vehicle. To the best of his recollection the left front of his car hit the rear quarter panel on the left side of the Bodi vehicle. He contended that his vision was obstructed by shrubbery.

Though the Trial Judge has not favored us with written reasons for judgment, it is apparent from his ruling that he favored the testimony of Dave Bodi in holding the defendant Jones negligent, and that his negligence was the sole proximate cause of the accident. We find no error on the part of the Trial Judge. Further, we find no contributory negligence on the part of Paul Bodi.

QUANTUM

The Trial Court rendered judgment in favor of Dave Bodi in the amount of $43,-010.31, limiting GEICO’s liability to $20,-000.00. It also rendered judgment in favor of Paul Bodi in the amount of $7,200.05.

DAVE BODI

He received a six inch laceration in the scalp which was sutured in the emergency room. This laceration was within the hairline, and therefore the scar was not visible. In addition, there was a severe comminuted unstable fracture of the body of the seventh cervical vertibrae, and a fracture of the left twelfth rib. After the emergency room treatment, he was placed in bed with halter traction.

On December 20, he was operated on under a local anesthetic and Venke tongs were inserted for the maintenance of the skeletal traction. For the insertion of the Venke tongs a small hole was drilled on each side of the head through the outer table of the skull for the insertion of a small pin which grips onto the drill hole and then is attached to traction. It was described as being similar to ice tongs.

After this procedure was accomplished, he was placed in either a Stryker or Foster frame for six weeks. This frame consist of two narrow cot like frames with the ability of being bolted together with the patient sandwiched in between. This allows the patient to be turned completely over while traction is still being applied.

During this period he received sufficient medication so as to place his pain at a comfortable level.

After this six week period, his head was placed in a four poster brace. In early April, he was allowed to remove this brace intermittently, and after a several month period was allowed to discontinue its use.

He was given a 20 per cent permanent physical impairment and loss of physical function, and advised to avoid cold drafts because of a higher cause of pain. Because of the fear of reinjury he was restricted from activities wherein injury to his head could occur, i. e. water skiing, contact sports, and diving.

PAUL BODI

He also received a laceration to the scalp behind the hairline which was sutured in the emergency room. He complained of pain in his left knee and was admitted for observation. He was further diagnosed as having a mild brain concussion and contusion of the left knee. X-rays of the knee revealed no fractures, dislocations, and x-rays of the skull were normal. Plaintiff contends he had an open wound to his knee. He was released from the hospital on December 26, and was again seen by the attending physician on January 2 and January 9 of 1969, and discharged on January 9. During his hospital stay he occasioned severe headaches because of the brain concussion and was disoriented and confused for four or five days. He was only administered aspirin and Tylenol for his pain during his hospital stay, other than sedatives to help him get to sleep.

It is contended that of the $43,010.31 judgment in favor of Dave Bodi, $3,010.31 is for medical and other expenses including loss of earnings, thus leaving a $40,000.00 judgment for general damages, which both GEICO and Jones contend is excessive. These defendants-appellants also contend that of the $7,200.05 awarded to Paul Bodi, $2,200.05 was for special items, thus leaving a $5,000.00 award for general damages, and this is excessive.

We are ever mindful of the principle enunciated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) that awards for damages lie within the much discretion of the trier of fact and are not to be disturbed on appeal unless there is a manifest abuse of the discretion. Further, that cases of similar nature do not provide a scale of uniformity involving comparable injuries.

With this in mind, we have reviewed this record, and in particular the testimony of Dr. Daniel S. Sinclair, the treating orthopedic surgeon of Dave Bodi as to the damages awarded to both plaintiffs, and though we feel the Trial Judge may have been liberal in both awards for general damages, we find no abuse of discretion.

COVERAGE

The contested issue between GEICO and Jones is whether there is coverage or whether the policy was effectively canceled prior to the accident. There apparently is no question but that Tucker Jones at least three times in three years had been late in his premium payments and had suffered cancellation, but yet his policy was reinstated. The chronology of events leading up to this cancellation are as follows:

(1)October 8,1968, notice of cancellation sent to Tucker Jones and received on October 10,1968. This notice of cancellation in essence demands payment from the insured prior to the cancellation date of October 31, 1968 and further informs the insured “ACT NOW TO PREVENT CANCELLATION OF YOUR INSURANCE PROTECTION.”
(2) November 12, 1968, payment in the amount of $41.17 sent to GEICO.
(3) December 2, 1968, payment received by GEICO and check from insured was accepted and deposited.
(4) December 17, 1968, accident occurs.
(5) December 17,1968, notice was sent to Crawford and Company, adjusters for GEICO, and Crawford and Company on same day mailed notice to GEICO.
(6) December 23, 1968, GEICO received notice of the accident.
(7) December 81, 1968, refund check in the amount of $40.56 was issued by GEI-CO to Jones.
(8) January 21, 1969, GEICO cancellation notice sent to Jones.

Jones contends that under the doctrine of equitable estoppel the notice of cancellation issued on October 8, 1968 was ineffective. In discussing this problem our brethren on the Third Circuit in Carter v. Benevolent Life Insurance Company, Inc., 300 So.2d 623, 625 (La. 3rd Cir. 1974), writ refused, 304 So.2d 666 (La.1974) said:

“They say that defendant’s custom of accepting overdue premiums caused plaintiffs to reasonably believe that the policies would remain in effect even though the premiums were not paid when due. Plaintiffs rely on jurisprudence which allows recovery in such cases. These cases establish the following general rules: (1) There must be a habit or custom of accepting overdue premiums; (2) The insured must reasonably believe that by reason of this custom the insurer will maintain the policy in effect without prompt payment of premiums.”

It is obvious from the decision of the Trial Judge that he believed that a habit or a custom of accepting overdue premiums existed and Jones was led to rely on this custom. From our review of the record, we find no error on the part of the Trial Judge.

ATTORNEY FEES

In his third party demand against GEICO, Jones asked for reasonable attorney fees for failing to provide him with a defense. The Trial Judge did not award attorney fees to Jones, and he of course contends this is error.

We do not find anywhere in the record that GEICO in defending itself in this lawsuit also defended its insured, Tucker Jones. In filing its responsive pleadings, it did not include Tucker Jones in those pleadings, and to his third party demand, they specifically denied coverage, contending that the insurance policy had been canceled. We necessarily then do not feel that this case is covered by the case of Breitenbach v. Green, 186 So.2d 712 (La.App. 4th Cir. 1966) wherein the insurer alleged cancellation, but in defending itself also defended the insured, and the court denied attorney fees to the attorney representing the insured because the insurer also defended the insured. In the absence of also defending the insured, we believe that the facts of this case are controlled by Clemmons v. Zurich General Accident & Liability Insurance Co., 230 So.2d 887 (La.App. 1st Cir. 1969) and Fontenot v. State Farm Mutual Insurance Co., 119 So.2d 588 (La.App. 1st Cir. 1960). Therefore, we are of the opinion that the Trial Judge was in error in not awarding attorney fees to the defendant Jones. After reviewing this record, and in particular the pleadings filed, the depositions attended, and the transcript of evidence taken at the trial, we are of the opinion that a fair award for attorney fees would be $1,750.00.

DECREE

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed in its failure to award attorney fees to Tucker Jones, and it is ordered that there be judgment in favor of Tucker Jones and against Government Employees Insurance Company in the amount of $1,750.00; and in all other respects the judgment of the Trial Court is affirmed. All costs of this appeal to be paid by Government Employees Insurance Company.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

      . Subsequent to the filing of the petition, Dave Bodi became of age and was substituted as a party plaintiff.


author: ELLIS, Judge.

text:
    LOUISIANA INTRASTATE GAS CORPORATION v. Carroll Daniel McINTIRE et al.
    No. 11451.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Robert L. Picou, Jr., Houma, for plaintiff and appellee.
    John L. Lanier, Thibodaux, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

In this suit, plaintiff seeks to expropriate from defendants a 30-foot servitude for the construction of a 24-inch gas pipeline, together with a temporary construction servitude on either side thereof. The only issue presented in the trial court was the amount of the award to be made. After trial on the merits, judgment was rendered fixing the compensation at $19,897.00 and defendants have appealed, asking for an increase. Plaintiff has answered the appeal, asking that the award be reduced by the amount of $9,750.00, the severance damages awarded by the court.

Defendants are the owners of a tract of land, containing approximately 75 acres, measuring four and one-half arpents front by a depth of 20 arpents. The property runs northeast and southwest and fronts on Bayou Black and a parish road. It is of varying topographic character, suitable for residential purposes for about 200 feet back from the road, with a strip of low woodland behind that, and a higher ridge suitable for agricultural purposes to its rear. The property is traversed by a drainage canal to the rear of the ridge, and the remainder is characterized as low woodland or swamp.

The permanent servitude sought is 30 feet in width and runs parallel with the side lines of the tract for about 3,220 feet, at which point it turns approximately north for about 800 feet where it exists on the northerly side line. The servitude contains 2.779 acres.

The temporary construction servitude lies mainly on the northwesterly side of the permanent servitude, and contains a total of 4.635 acres. There are no significant improvements on the property.

As is usual in cases of this nature, two experts testified for each side, and their testimony was predictably diverse. One of the plaintiff’s witnesses, Allen J. Angers, valued the permanent servitude at $5,094.00, the temporary servitude at $185.00, and gave $2,000.00 in severance damages because of the loss of a large oak tree near the road. He did not think that the presence of the pipeline would diminish the value of the remainder. His total award was $7,001.00.

Plaintiffs other witness, Kenneth A. Bar-rilleaux, evaluated the permanent servitude at $5,043.00. For the temporary servitude, and severance damages to the property included therein, he awarded $5,758.00, for a total award of $10,801.00.

Defendants’ first witness, John W. Du-gan, evaluated the property as a whole, before the taking, at $3,500.00 per acre, with a total value of $261,000.00. He evaluated the permanent servitude at $3,500.00 per acre for the 2.779 acres, or $9,727.00. The value of the remainder, before the taking was, therefore, $251,273.00. He estimated a 15 per cent overall reduction in the value of the property as a result of the location of the pipeline, and found a value for the remainder, after the taking, of $2,985.00 per acre, or a total of $214,400.00. He calculated that severance damages to the remainder were $36,873.00. He awarded $1,623.00 for the temporary servitude for a total award of $48,223.00.

Defendants’ other witness, Preston J. Ba-bineaux, also valued the tract as a whole at $3,500.00 per acre, and reached the same value for the permanent servitude as did Mr. Dugan. He calculated severance damages of 30 per cent to a 200-foot strip of land lying on either side of the permanent servitude, for a total damage of $37,757.00. He valued the temporary servitude at $1,622.00, for a total award of $49,105.00. However, he reduced the award by $1,200.00 because of the presence of an electric power line right-of-way which crosses the servitude taken herein, making a total award of $47,905.00.

The differences in the testimony of the experts are due to the use of different comparable sales, different adjustments in the values thereof, and a difference of opinion as to the effect of a gas pipeline on property adjacent thereto.

The trial judge concluded that the permanent servitude was worth $6947.00, which works out to $2,500.00 per acre. He gave $1,200.00 for the temporary servitude, $2,000.00 for the loss of the oak tree, and $9,750.00 in other severance damages, which is an approximate 15 per cent loss in value to 150 feet on either side of the permanent servitude. Although the judge did not adopt the testimony of any of the experts, there is ample evidence in the record to support the result reached, and there is certainly no manifest error therein.

Defendants also complain that the expert witness fee of Preston J. Babineaux was fixed at $500.00, less than half of the amounts awarded to the other appraisers. Expert witness fees are not determined by what a landowner has agreed to pay the witness. The fee should be reasonable, in line with what courts have awarded in similar cases, and based on the relative usefulness of his testimony. State, Department of Highways v. Manning, 322 So.2d 362 (La.App. 2nd Cir. 1975); State, Department of Highways v. Gordy, 322 So.2d 418 (La. App. 3rd Cir. 1975). The record shows that Mr. Babineaux was furnished with comparable sales by the attorney for the defendants, and that he was not as familiar therewith as were the other experts. Much of his preparation time was spent in consultation with the attorneys, which is not com-pensable. State, Department of Highways v. Manning, supra. Considering the foregoing, we cannot say there is manifest error in the ruling of the trial judge.

Defendants also argue that the trial judge erred in ordering each side to pay its own costs. They point out that no tender of the true value of the land taken was made prior to suit, as required by R.S. 19:12 and Article 2638 of the Civil Code, and that the expropriating authority is thereby obligated to pay the costs. This contention is correct, and the judgment will be amended accordingly. See State v. Barineau, 225 La. 341, 72 So.2d 869 (1954); Collins Pipeline Company v. New Orleans East, Inc., 250 So.2d 29 (La.App. 4th Cir. 1971).

Defendants’ final specification of error relates to the failure of the judgment below to contain certain restrictions on the use of the servitude which are set forth in plaintiff’s petition. Defendants are entitled to have the servitude taken described fully in the judgment, and it will be amended to that extent.

The judgment appealed from is therefore amended to include the following limitation on the use and occupancy of the permanent servitude:

“a. Whenever it becomes necessary for plaintiff, or its agent or contractor, to cross a fence, at all times a proper enclosure will be maintained and said fence will be restored as promptly as possible to as good a condition and as it was prior to the crossing.
“b. The ditch in which the pipeline is laid and all ruts and depressions caused by construction operations shall be leveled within a reasonable time after completion of the laying of such line.
“c. Plaintiff shall remove all stakes or posts, which may have been put into the ground and generally restore the surface of the land to as nearly its original condition as may be practical.
“d. Plaintiff shall have the right to place only one pipeline under the right-of-way and easement.
“e. The right of ingress and egress here-inabove referred to and sought herein shall be confined to the right-of-way and easement above described and existing public roads on the above described lands of defendant,
“f. Defendant shall have the right to place along, across and over said right-of-way and easement as many roads, streets, sidewalks, passageways, electric light and power lines, water lines, sewer lines, gas lines, telephone poles and telephone lines, and any and all other utilities as said defendant may desire, provided, however, that if the same are placed along, as distinguished from across said easement, they shall not be placed over the pipelines of plaintiff,
“g. After the completion of the construction clean-up and restoration operations, plaintiff shall have no further rights to the temporary working space described above and its rights shall be limited solely to the permanent right-of-way also described above.

As amended, the judgment appealed from is affirmed, with all costs in this court and the court below to be paid by plaintiff.

AMENDED AND AFFIRMED.