text:
    John Jerry BLANCHARD v. Dallas Arnold PICOU et al. John Gerry BLANCHARD v. Robert C. KENT, Sr., et al. William A. ROE et al. v. Robert C. KENT, Sr., et al. William A. ROE et al. v. Dallas Arnold PICOU.
    No. 62817.
    Supreme Court of Louisiana.
    Aug. 18, 1978.
    John L. Hantel, New Orleans, for defendant-applicant-relator.
    Chalin 0. Perez, New Orleans, Michael Kirby, Port Sulphur, Luke A. Petrovich, Bunos, for plaintiffs-respondents.
   PER CURIAM.

The present application is by Robert C. Kent, Sr., a candidate for school board in the Parish of Plaquemines. It was granted at the same time as the application for supervisory writs was granted on application of Dallas A. Picou, Jr. in the companion suits. Roe, Dowdy and Blanchard v. Picou, 361 So.2d 874 (writ granted August 15, 1978).

In the lower court judgments, candidate Kent was held to be qualified as a candidate in the primary election to be held on the sixteenth day of September, 1978 for election to the office as a member of the Plaquemines Parish School Board, Ward 6 of the Ten Ward System in effect prior to June 11, 1970.

The present application by Kent was filed as a precautionary writ in the event this court held that the Five Ward System was still in effect. Since in the companion writs decision rendered this date, we have not held the five ward system to be in effect, the applicant is not in need of the precautionary relief sought by him only in the event this court determined that the Five Ward System was still in effect.

Accordingly, we recall and rescind the writ of certiorari, and we dismiss this application.


source: Caselaw Access Project

author: SUMMERS, Justice. DIXON, J., SUMMERS, Justice. DENNIS, Justice,

license: Public Domain

text:
    J. J. McKENZIE v. The Honorable Edwin W. EDWARDS, Governor of the State of Louisiana, et al.
    No. 62869.
    Supreme Court of Louisiana.
    Aug. 18, 1978.
    Reasons For Judgment Aug. 22, 1978.
    William J. Guste, Jr., Atty. Gen., Car-mack M. Blackmon, Asst. Atty. Gen., Tommy D. Teague, Staff Atty., Baton Rouge, for defendants-appellants.
    J. J. McKenzie, in pro. per.
   SUMMERS, Justice.

This matter involving elections for the offices of two Judges of the City Court of Baton Rouge is on appeal from a judgment of the District Court declaring Act 38 of 1978 unconstitutional and enjoining the closing of qualification for said officers. The matter has been heard in a summary fashion at a special fixing because it involves an election. Due to the fact that time is of the essence, a decree is entered herein to be followed in due course by the Court’s reasons for judgment, viz:

DECREE

For the reasons to be assigned, it is ordered, adjudged and decreed the judgment of the District Court is reversed.

It is further ordered, adjudged and decreed that the preliminary injunction issued by the District Court enjoining the defendants, The Honorable Edwin W. Edwards, Governor of the State of Louisiana, and The Honorable Paul J. Hardy, Secretary of State of the State of Louisiana, from closing the qualifying period for candidates for the Division “A” and Division “C” judge-ships of the City Court of Baton Rouge be and the same is set aside, dissolved and declared invalid.

It is further ordered, adjudged and decreed that the Proclamations of The Honorable Edwin W. Edwards, Governor of the State of Louisiana, dated August 7, 1978, calling a special primary and special general election to be held to fill the vacancies of the judgeship of Division “A” and Division “C” of the City Court of Baton Rouge, be and the said Proclamations are declared to be legal, valid and constitutional, and said Proclamations are and have been in full force and effect, and the closing date for qualifying is and has been in effect in accordance with said Proclamations.

DIXON, J.,

dissents, believing the constitution does not permit the calling of an election until the office is vacant, and that a resignation notice, effective at a further date, does not create a vacancy until that date occurs.

REASONS FOR JUDGMENT

SUMMERS, Justice.

The incumbent Judges of Divisions “A” and “C” of the City Court of Baton Rouge were elected to serve as Judges of Division “I” and “K”, respectively, of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge. On August 1, 1978 they filed declarations of anticipated resignation with the Secretary of State to be effective January 1, 1979 when they were to be sworn in as District Judges. Upon receipt of these declarations the Secretary of State furnished copies to the Governor. The declarations and notice to the Governor purported to be carried out in accordance with Act 38 of 1978, an amendment to the Election Code. (La.Rev.Stat. 18:402, 583, 602).

Acting on these declarations and the power vested in his office by Article V, Section 22(B) of the Constitution, the Governor then issued his August 7, 1978 proclamations calling for a special primary and a special general election to fill these vacancies, fixing August 9, 1978 to August 14, 1978 as the dates for qualifying.

On August 10,1978 J. J. McKenzie, alleging that he was qualified and planned to be a candidate for the office of city judge of Division “A” or “C”, filed suit against the Governor and Secretary of State to enjoin the opening and closing of the qualifying period for the office of judge of the city court. He based his petition upon a plea that Act 38 of 1978 defining anticipated vacancies was unconstitutional.

By answer the Governor and Secretary of State denied the allegation of McKenzie’s petition generally. In their brief, opposing the injunction sought by McKenzie, they contended that the special elections and qualifying dates set in connection therewith were called and set without regard to Act 38 of 1978. On the contrary, it is asserted, the proclamations were issued under the authority vested in the Governor by Section 22 of Article V of the Constitution, authorizing the calling of special elections when a vacancy occurred in the office of a judge. Further, they argue that the resignations of the City Judges created anticipated vacancies which were vacancies as defined by Section 28 of Article X, and as contemplated by Section 22 of Article V of the Constitution, requiring the calling of an election.

After a hearing on the rule to show cause why the injunction should not issue, the trial judge found that no vacancy existed in the office of City Judge; that the Supreme Court had failed to certify such a vacancy as required by Act 38 of 1978; and that the approval of Act 38 of 1978 by a three-judge federal court or the Department of Justice had not been obtained as required by the federal voting rights act (42 U.S.C. 1971-74e) as interpreted in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). The trial judge held, moreover, that Act 38 of 1978 conflicts with the Louisiana Constitution. He found that the Constitution does not permit an anticipatory vacancy. Accordingly, he held the proclamation calling the elections to be invalid for failure of the Louisiana Supreme Court to certify that vacancies existed and for failure to obtain the Act’s approval as required by the federal voting rights act.

It is a fact that Act 38 of 1978 has not been approved by the federal courts or the United States Department of Justice as required by the federal voting rights law (42 U.S.C.A. 1971-74e). Moreover, McKenzie contends that Act 38 is for that reason inoperable and its anticipated vacancies provision cannot be invoked to implement the meaning of vacancy as used in the Constitution. The Governor and the Secretary of State acknowledge that the Act has not been approved and concede that it is inoperable and inapplicable to the facts of this case.

It is their position that this case must be decided on the constitutional provisions which are pertinent to this case. We agree. Reference to Act 38 of 1978 in the resignations and the Secretary of States’ notice to the Governor will therefore be treated as surplusage. The references to that act do not change the facts — the incumbent judges resigned prospectively and the Governor called the election on independent constitutional authority.

Undoubtedly the Governor is empowered by Section 22 of Article V of the Constitution to call a special election when a vacancy in the office of a judge occurs, and a vacancy, as used in the Constitution, shall occur in the event of resignation. La. Const. Art. X, § 27.

The vacancy in the offices of the judges of Divisions “A” and “C” of the City Court of Baton Rouge effective January 1, 1979 surely will occur because of the resignations to that effect. These resignations were accepted when the Governor issued his proclamation. When accepted the resignations became irrevocable, creating a vacancy in the office which, under the constitution, may be filled by election, even though the effective date of the resignation is prospective. Moreover, the incumbents in the City Court judgeships who have been elected to the district court could not take those higher offices without vacating the City Court judgeship. When the event is so certain to occur there is no legal impediment to anticipating the vacancies or the calling of the necessary elections to fill the vacancies when they become effective. To do so would, at least in this instance, assure the filling of the vacancies on their effective date by elected judges, a result in keeping with the spirit of Section 22(A) of Article V of the Constitution requiring, with limited exceptions, that “all judges shall be elected.”

There is little difference between the facts in the case at bar and the procedure provided in the Election Code for elections to offices which are not yet vacant and where the term of the incumbent will expire at a future date. Such a situation involves calling an election in advance of a vacancy in anticipation that a vacancy will occur. It is the practice for every public office, reasonably instituted, to assure continuity of the office, for the law abhors a vacant public office.

The practice of calling elections in anticipation of vacancies on account of resignations is one which has been accepted in this State for some time, both under the present constitution and the Constitution of 1921. The State has pointed to a number of the most recent instances where this has occurred. Terms of office which have not expired where an election of this sort was called to fill an anticipated vacancy would be subject to attack if the trial judge’s position were upheld in the case at bar.

These instances are evidence of the contemporaneous construction of the term vacancy as used in the constitution. And, while Act 38 of 1978 may not be operative or relevant to this case, the Legislature’s recognition that elections may be called to fill anticipated vacancies when resignations have been tendered to be effective at a future date is, as the Act stands, an expression of the public policy of this State on this question, notwithstanding that the Act is inoperative until federal approval has been received.

Although factually inapposite, an analogous situation existed in principle in State ex rel. La Nassa v. Hickey, 222 La. 17, 62 So.2d 86 (1952), where the governor made an appointment to fill an office before the incumbent’s commission expired and where no vacancy existed in the office. In upholding the validity of the appointment to the anticipated vacancy this Court held:

“There is no law in Louisiana which prohibits the Governor and the Senate, the officers who, and the body which, are empowered to act in cases of this kind, from making the appointment in order to fill the vacancy which was surely to arise when the respondent’s [incumbent] commission expired at the end of the Senate Session.”

Due to the fact that time was of the essence in this election case the decree was rendered on August 18, 1978 to be followed in due course by the Court’s reasons for judgment.

DENNIS, J., concurs and assigns reasons.

DIXON, J., has dissented and assigned reasons at the time the decree was rendered.

DENNIS, Justice,

concurring.

I join in the result reached by the Court and agree with virtually all of the majority opinion, differing only slightly with its description of when a vacancy occurs in a judicial office. In my opinion a “resignation,” and consequently a “vacancy,” occurs when an unqualified letter of resignation is accepted, although the effective date of the resignation and vacancy is delayed for a reasonable period of time until a future date. La.Const. 1974, Art. V, § 22; La. Const. 1974, Art. X, § 28.

      . La.Const. Art. V, § 22, provides:
      “(A) Election. Except as otherwise provided in this Section, all judges shall be elected. Election shall be at the regular congressional election.

        “(B) Vacancy. A newly-created judgeship or a vacancy in the office of a judge shall be filled by special election called by the governor and held within six months after the day on which the vacancy occurs or the judgeship is established, except when the vacancy occurs in the last six months of an existing term. Until the vacancy is filled, the supreme court shall appoint a person meeting the qualifications for the office, other than domicile, to serve at its pleasure. The appointee shall be ineligible as a candidate at the election to fill the vacancy or the newly-created judicial office. No person serving as an appointed judge, other than a retired judge, shall be eligible for retirement benefits provided for the elected judiciary.
      “(C) End of Term. A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.”

      . La.Const. Art. X, § 28 provides:
      “A vacancy, as used in this Constitution, shall occur in the event of death, resignation, removal by any means, or failure to take office for any reason.”


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. STATE of Louisiana.
    No. 61793.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Lionel Fields applying for reconsideration. Orleans Parish.

Granted: this application is transferred to the district court, which will act on the allegation of ineffective counsel; the other allegations are without merit. Our previous ruling that the application was moot is set aside.


text:
    STATE of Louisiana v. Billy Joe DUPONT.
    No. 62771.
    Supreme Court of Louisiana.
    Aug. 2, 1978.
   In re: Billy Joe Dupont, applying for writs of certiorari, mandamus and prohibition. Parish of St. John the Baptist.

Denied in part; granted in part. Bond reduced to $3,500.00. Denied in other respects.


text:
    STATE of Louisiana v. Richard Earl BUTLER.
    No. 62830.
    Supreme Court of Louisiana.
    Aug. 14, 1978.
   In re: Richard Earl Butler applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ granted in part. Since the Grand Jury has indicted the defendant for a capital offense subsequent to the bail hearing, it is ordered that the case be remanded for a post-indictment bail hearing in accordance with article 313, C.Cr.P.

SUMMERS, J., dissents, being of the opinion that the showing made by defendant does not warrant a reduction of bond. Moreover, the action at the hearing of June 21, 1978 is mooted by the subsequent Grand Jury indictment of June 23, 1978.


text:
    STATE of Louisiana v. Gerard EDWARDS.
    No. 62808.
    Supreme Court of Louisiana.
    Aug. 14, 1978.
   In re: Gerard Edwards applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ granted. Case remanded to District Court for further evidentiary hearing and consideration in view of La.C.Cr.P. arts. 741 & 743.

SANDERS, C. J., dissents from the granting of the writ.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Robert F. PETER.
    No. 62831.
    Supreme Court of Louisiana.
    Aug. 14, 1978.
   In re: Robert F. Peter applying for writs of certiorari, (writ of review), prohibition, mandamus and for a stay order. Parish of Orleans.

Writ granted. Bond pending review reduced to $1,500.00..

SANDERS, C. J., is of the opinion that the showing made is insufficient to warrant a reduction of the bond.

SUMMERS, J., dissents and is of the opinion the showing made does not warrant a finding that the trial judge has abused his discretion which this action of the Court implies.


text:
    John Jerry BLANCHARD v. Dallas Arnold PICOU, Jr., Hon. Allen L. Lobrano Clerk of Court, Parish of Plaquemines, etc., et al. John Jerry BLANCHARD v. Robert C. KENT, Sr., Hon. Allen L. Lobrano, etc., et al. William A. ROE and Vernon Dowdy v. Robert C. KENT, Sr., Hon. Allen L. Lobrano, etc., et al. William A. ROE and Vernon Dowdy v. Dallas Arnold PICOU, Jr., Hon. Allen L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana and Hon. Paul J. Hardy, Secretary of State, State of Louisiana.
    No. 62817.
    Supreme Court of Louisiana.
    Aug. 15, 1978.
   In re: Robert C. Kent, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines.

Granted. Case assigned for argument August 18, 1978 at 10:00 A.M.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    ROGER WILLIAMS INSURANCE COMPANY and Patrick Horrigan, d/b/a Horrigan Bonding Company v. Harry F. CONNICK.
    No. 62860.
    Supreme Court of Louisiana.
    Aug. 18, 1978.
   In re: Roger Williams Insurance Company and Patrick Horrigan, d/b/a Horrigan Bonding Company, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans.

Writ Denied. Stay order set aside. On the showing made the exercise of our supervisory jurisdiction in this civil case is not warranted, without prejudice to any rights the petitioners may have to seek supervisory relief from any ruling or action in the Criminal District Court on the subject matter of this application.

DIXON, J., dissents from the denial and would grant the writ.


text:
    STATE of Louisiana v. Ronald W. SMITH.
    No. 62851.
    Supreme Court of Louisiana.
    Aug. 18, 1978.
   In re: Ronald W. Smith, applying for remedial writs. Parish of Orleans.

Application together with transcript remanded for ruling by the Trial Judge.


text:
    STATE of Louisiana v. Fred Lamar KYZAR.
    No. 62900.
    Supreme Court of Louisiana.
    Aug. 22, 1978.
   In re: Fred Lamar Kyzar, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of St. Mary.

Writ granted in part: Since the State has not borne its pre-indictment burden of showing that the proof is evident and presumptions great that the accused is guilty of first degree murder, a non-bailable capi-tel offense. The case is remanded for the trial court to fix bail.

SUMMERS, J., dissents. There is no showing of abuse of discretion by the Trial Judge.


text:
    STATE of Louisiana v. Louis J. MIRAMBELL, Jr.
    No. 62895.
    Supreme Court of Louisiana.
    Aug. 24, 1978.
   In re: Louis J. Mirambell, Jr., applying for writ of habeas corpus. Parish of Jefferson.

Writ granted: The defendant’s motion for a speedy trial is granted. The trial court is ordered to commence trial of the accused on the charge involved on or before October 26, 1978, or else dismiss the DWI charge against the accused.


author: SCHOTT, Judge.

text:
    Francis Louis FOLSE et al. v. Nicholas E. FAKOURI et al.
    No. 8987.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Writ Granted Oct. 26, 1978.
    Johnston & Duplass, Robert M. Johnston, New Orleans, for defendants-appellants.
    Offices of Frederick J. Gisevius, Jr., Frederick J. Gisevius, Jr., New Orleans, for plaintiff-appellee.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment based on a jury verdict which was returned on special interrogatories. Specific amounts were awarded for past and future medical expenses- and property damage and $150,000 was awarded as general damages, but defendants have not made an issue of these items. At issue here are awards of $47,000 for past loss of wages and/or earning capacity and $100,000 for future loss of earning capacity.

In addition, defendants have specified errors in the award of the judgment as against Clover Farm Creamery, Inc., and the partnership of Clover Farm Creamery, and in the trial judge’s charge concerning the inability of some of the defendants to respond in damages.

This case arose out of an accident which occurred on April 20, 1971, between a school bus owned and operated by plaintiff Folse and a truck operated by John R. Mayer. Suit was filed on January 20, 1972, against Nicholas E. Fakouri, Mazie Bertinot, Mayer and the Hartford Accident and Indemnity Company. Fakouri and Bertinot were referred to in the petition and citations as “d/b/a Clover Farm Creamery and Green-spot of Opelousas, La.” It was alleged that Mayer was an employee of Fakouri and Bertinot, d/b/a Clover Farm Creamery, etc., and he was operating their truck with their permission so as to be an omnibus insured under their policy with Hartford. Plaintiffs subsequently joined two additional defendants, namely, Greenspot of Opel-ousas, La., and Clover Farm Creamery, Inc., both corporations based on allegations that Hartford was also their insurer, that Mayer was also their employee. Once again the prayer and the citations, in connection with the supplemental and amending petition, was served upon Fakouri and Bertinot, d/b/a Clover Farm Creamery and Green-spot of Opelousas, La.

The answer was filed by Fakouri and Bertinot, d/b/a Clover Farm Creamery, along with the two corporations, in which the individuals admitted that they were doing business as Clover Farm Creamery, that there was a collision between the school bus “and the vehicle owned by Clover Farm Creamery (Fakouri and Bertinot),” and that Mayer was an employee of Fakouri and Bertinot, d/b/a Clover Farm Creamery, in the course and scope of his employment at the time of the accident and covered by the Hartford policy. They made similar declarations in response to a petition of intervention filed by the subrogated workmen’s compensation insurer of plaintiff.

In a supplemental and amending petition filed to increase the amount of damages sought, defendants Fakouri and Bertinot were once again sued and cited as “d/b/a Clover Farm Creamery and Greenspot of Opelousas,” and an answer was filed by them in that capacity. In other pleadings, motions and interrogatories, they appeared in the same capacity. In this setting the case went to trial on December 1, 1975. Shortly after the trial commenced, plaintiff’s counsel made the following statement:

“. . .If your honor please, we would also like the record to show that we have filed in the record, your Honor yesterday, I did not mention it at the time of filing our motion, but in our pre-trial that we held yesterday morning, we offered a motion orally and stated that we had it in writing to make the partnership by itself by its name a part of the pleadings, to amend it since it now appears that instead of the partnership just the two parties, it is a partnership of more than two parties and that the truck itself was owned in the name of the creamery and it is now shown that this is a partnership, the partnership by its name by operation of law according to the pleadings.”

Thus, for the first time plaintiff attempted to make a partnership, Clover Farm Creamery, a party to this lawsuit. The court made the following disposition of this motion:

“The Court, in connection with that matter, will make a quick reference in connection with the partnership. There has been an answer in a judicial admission that the truck was owned. One of the answers that I saw according to the pleadings filed that the truck was owned by Clover Farm Creamery, it does not say Inc., does not say Green Spot of Opelou-sas, Inc., I believe that is sufficient to bring that partnership. I don’t see there is a problem. The Court is going to take the fact that there is a pleading in the record and we are going to go from there.”

The judgment was in favor of plaintiffs and against Fakouri and Bertinot “individually and as d/b/a Clover Farm Creamery and the partnership of Clover Farm Creamery, itself, and Clover Farm Creamery, Inc.” along with Mayer and Hartford.

It appears from the record that Clover Farm Creamery was a partnership consisting of Fakouri and Bertinot along with one Carolyn Bertinot Fakouri, the latter owning in excess of 21% and never having been made a party to these proceedings.

As can be seen from the foregoing detailed recitation of the procedural background of this case, Fakouri and Bertinot were sued under a trade name pursuant to LSA-C.C.P. Art. 736. They were also sued individually, but at no time was the partnership sued as such and no mention was made of it until the trial of the case had already begun. Under C.C.P. Art. 737 a partnership has the procedural capacity to be sued in its partnership name. Furthermore, C.C.P. Art. 1201 provides that citation and service are essential in civil actions, and without them all proceedings are absolutely null unless the defendant expressly waives citation and service in writing.

The trial judge was apparently convinced that there had been some sort of waiver on the part of the partnership because of the answer that the truck was owned by Clover Farm Creamery, but an analysis of those pleadings discloses that all pleadings were filed by the individuals, Fakouri and Berti-not, and at no time was the partnership even mentioned in any of the pleadings.

In Stone v. Stone, 293 So.2d 523 (La.App. 4th Cir. 1974) we were confronted with a similar situation and concluded that the judgment against the partnership was not valid in view of the failure to make it a party to the proceedings in accordance with law. The same result obtains in the instant case.

We have considered the result of this conclusion on the efficacy of the judgment against the individuals, Fakouri and Bertinot, because C.C.P. Art. 737 also provides that the partners of a partnership may not be sued on a partnership obligation unless the partnership is joined as a defendant. If the partnership employed Mayer and owned the truck it would appear that this obligation was a partnership obligation, but when Fakouri and Bertinot stated in their answer that they owned the truck and employed Mayer this constitutes a judicial admission on their part and a waiver of any objection they might have had to the action proceeding against them despite the absence of the partnership.

Defendants object to the jury instructions because the jury was not told that they consider the ability of the individual defendants to pay in considering a damage award. This is a case where Hartford’s policy had limits of $100,000, so that there was individual exposure in view of the seriousness of the injuries sustained by Folse. However, we . do not find that the instruction, when taken as a whole, was improper. The jury was instructed “to take into consideration the ability of each defendant to pay in considering the damage award,” and that the financial ability of the defendant is a circumstance “which may be considered” by the jury. The court then went on to discuss the equitable rule which allows a defendant to introduce evidence of his ability or lack of ability to pay a money judgment and he instructed the jury “you should consider this evidence, together with the plaintiffs’ evidence” in assessing damages. We have concluded that the instructions taken as a whole were correct.

We come now to the question of the amount of damages awarded for past loss of wages and/or earning capacity and future loss of earning capacity.

At the time of this accident, plaintiff was a 50-year old school bus driver. There is no question but that he is permanently and totally disabled as a result of the accident. He employed others to drive the bus until October, 1972, when his wife began to drive the bus and she continued to do so until the time of the trial. Under the arrangement with the school board plaintiff was paid a salary to drive the bus as well as mileage for the use of the bus. He testified that he also earned about $3,000 per year from mechanical work consisting of $1800 for the work that he did on his own bus and two automobiles, and $1200 for work he did for others.

Before the accident his wife had been employed. She left her job in order to take over the driving of the bus, beginning in 1972. Check stubs and testimony indicated that plaintiff earned in 1970 $120 per week with the Royal Sonesta Hotel and a total of $2858 from school bus operation for that year when he apparently started driving. In the meantime, his wife, in 1970, was employed by Ochsner Foundation Hospital and earned approximately $175 every two weeks. At the end of 1970, she took a job with a supermarket, earning approximately $70 per week. Income tax returns for 1971, 1972, 1973 and 1974 were placed in evidence. On the 1971 return plaintiff reported earnings from the school board of slightly over $12,000 and his wife, from the supermarket, of almost $2500. After deducting the expenses of the school bus operation, the couple reported an adjusted gross income of $10,576.09. In 1972, 1973 and 1974 the couple reported income of $13,852, $12,406, and $11,371 respectively.

Herman J. Biscoglia was called as an expert witness qualifying as a consulting actuary. He testified that plaintiff’s life expectancy at the time of the accident was 26 years and 22.8 years at the time of the trial. His work life expectancy at the time of the accident was 18.1 and 14.8 at the time of the trial. He testified that the average salary of bus drivers throughout the United States was $10,174, and using that figure he estimated plaintiffs loss of income from the date of the accident to the date of the trial as $47,479 and his future loss of earnings to be $122,157. There were other figures given to Biscoglia, such as $5,000, $12,000, and $14,000, but the jury apparently accepted and used the $10,174 average bus driver figure since their verdict approximates the loss of earnings figures computed by Biscoglia corresponding to that figure.

Defendants contend that plaintiff did not lose any earnings because his wife simply assumed the driving of the bus after the accident. They point to the income tax returns as proof that plaintiff and his wife suffered no loss of earnings whatsoever, especially since plaintiffs projected that their 1975 earnings would exceed $14,000. In effect, they dispute the legality of an award for loss of earning capacity under circumstances where the community between plaintiff and his wife had no loss of earnings. In support of their position they refer to the cases of Borde v. Travelers Insurance Company, 281 So.2d 797 (La.App. 3rd Cir. 1973); McDonald v. Scotlandville Fire Pro. Dist. Com’n., 222 So.2d 324 (La.App. 1st Cir. 1969); Henderson v. Travelers Indemnity Company, 158 So.2d 365 (La.App. 2nd Cir. 1963), and Greenburg v. New Orleans Public Service, 74 So.2d 771 (Orl.App.1954). In the Borde case the pertinent issue was the husband’s claim for the loss of his wife’s earnings as theatre manager. The evidence showed that prior to her accident she had been employed as the manager and following the accident nothing was awarded for her loss of $75 per week for 13 weeks. She received half of her pay as sick pay for nine weeks, and additionally her husband was substituted as manager and received the full pay until his wife returned to work. During the three months she was off the job she continued to do the book work. Plaintiffs argued that defendants were not entitled to the credit for the fact that Mrs. Borde’s husband took over his wife’s work as manager, but the case turned on the fact that both Mr. and Mrs. Borde were performing the work as manager, both before the accident and during her three month period of disability, and plaintiffs were not entitled to an increase in the award. Insofar as we differ from it we decline to follow the Borde case. In the McDonald case, that issue was plaintiff’s claim for increase in the award for alleged loss of earning capacity. The court did not hold that loss of earning capacity was not compensable but rejected McDonald’s claim because of the intricate and apparently confusing testimony of an economist on whom plaintiff was relying to support his claim. The court concluded that this economist’s testimony was highly conjectural and speculative. In the Henderson case, it was the plaintiff again who was attempting to increase the award, and in rejecting this contention the court noted that during his period of incapacity the plaintiff was paid his wages. Although his work was done through hired help and by the assistance of the members of the family there was no showing of the amount plaintiff paid to have the work done. Thus, the court concluded there was no proof of the amount of loss plaintiff sustained in wages. Finally, in the Greenburg case, our predecessor court found that a judgment which allowed plaintiff to recover the amount which she lost in wages from her job for a month and a half while she ran the filling station owned by plaintiff during his illness was correct.

We fail to see where these cases afford any consolation to defendants in this case. The last cited case would authorize the jury to consider the amount Mrs. Folse lost from her previous employment in formulating an award for Mr. Folse. The McDonald case specifically recognized the right of a plaintiff to recover for loss of earning capacity. This case, along with Borde and the Henderson case were all affirmed because there was no evidence to support the additional sums which plaintiff was seeking.

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the court held that the injured party is entitled to be compensated in damages for decreased earning capacity and rejected the measure of such damages as mathematical decrease in the wages of the individual.

There is a difference between the quality of proof necessary to sustain a judgment for past earnings lost as compared to future loss of earnings. In Robinson v. Graves, 343 So.2d 147 (La.1977), the court pointed out that future loss of earnings cannot be calculated with absolute certainty and that such damages are somewhat speculative. Thus, there is some discretion left to the trier of fact which prevents an appellate court from substituting its own judgment simply on the basis that it believes a different award would be more appropriate. However, we do not find that the trial judge has the same discretion in the matter of the past loss of earnings, for which plaintiff was awarded $47,000, necessarily based on annual earnings of $10,000.

The only evidence before the jury as to the $10,000 figure was the testimony of the actuary to the effect that this was the average bus driver’s salary in the United States. But this average figure has no probative value as to plaintiff’s earnings. The average figure is based on drivers all over the country, of all ages and operating under a variety of arrangements with their employers. If an average could be used at all a more specific and pertinent group of drivers would have to be studied to devise an appropriate average.

After the accident, plaintiff continued to own the bus and would continue to be paid mileage for the use of his bus by the school board. Since he could no longer drive the bus he is entitled to compensation for the salary he would pay others to drive. This includes his wife, who was only available because she gave up another job. She testified that the salary of the driver in 1971 was $363 per month and in 1975 $583 per month, so that the salary increased $55 per month for each year. The salary is a nine months’ salary; La.R.S. 17:496. If we allow plaintiff $2178 for six of the nine school months of 1971, $3762 for 1972, $4257 for 1973, $4752 for 1974, and $5247 for 1975, we reach a total of $20,196 in past loss of earnings for driving the bus. Plaintiff also testified that he lost $3,000 in earnings as a mechanic of which $1800 was for working on his own vehicles and $1200 on those of others. Even if we allowed him the full $3,000 for the four years and eight months involved we would still not reach the total of $47,000 awarded to him. In any event, out of the $3,000, we see no basis for awarding him loss of mechanic’s fees for work on his own vehicles in view of his testimony that the bus required no repairs but was still under warranty for the year following the accident and his failure to produce any figures whatsoever as to the amounts he spent to have mechanical work done on the bus and his two automobiles because he was unable to work on these vehicles himself. Allowing him $1200 a year for the four years and eight months between the time of the accident and the date of the .trial he would be entitled to $5600 which, when added to the $20,196 already discussed, totals $25,796. In order to provide some compensation for the nebulous loss of mechanical fees on his own vehicles we would round this figure to $27,500 as the absolute maximum we can find supported by the evidence.

As we have already pointed out, the jury apparently used the economist’s figure of $10,000 annual earnings to arrive at past as well as future loss of earnings. Since we have concluded that this error requires a reduction in the award for past loss of earnings, the same logic requires a proportionate reduction in future loss of earnings. Thus, this figure will be reduced to $58,500.

Accordingly, the judgment in favor of plaintiffs against the partnership Clover Farm Creamery is reversed and set aside and their suit is dismissed against this particular defendant.

That portion of the judgment in favor of plaintiff, Francis L. Folse, and against defendants, John R. Mayer, individually, and Nicholas E.. Fakouri and Mazie Bertinot, individually, and as d/b/a Clover Farm Creamery and Clover Farm Creamery, Inc., (for the excess over $100,121 paid by an insurer) is amended to reduce the principal amount of that award to $166,805.81.

In all other respects the judgment is affirmed.

REVERSED IN PART, AMENDED IN PART AND AFFIRMED.


author: BOLIN, Judge.

text:
    C. P. WALKER, Plaintiff-Appellant, v. WESTERN-SOUTHERN LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 13559.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    En Banc. Rehearing Denied Aug. 15, 1978.
    Writ Refused Oct. 10, 1978.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

In this action plaintiff alleged defendant, his former employer and also his insurer under an employee security program, arbitrarily and capriciously withheld benefits for permanent disability. Plaintiff claimed the breach of contract caused him damages in the form of loss of the anticipated disability income as well as for mental anguish and humiliation. Defendant filed a “peremptory exception of partial no cause or right of action,” aimed at plaintiff’s claim for nonpecuniary damages. The trial court sustained the exception and dismissed plaintiff’s suit “as it pertains thereto.” We overrule the exception, set aside the judgment of dismissal, and remand.

Defendant’s exception contains the following language:

PEREMPTORY EXCEPTION
A.
As part of plaintiff’s claim against defendant on the alleged contract of insurance between the parties, plaintiff has made a demand for damages for mental anguish, humiliation and inconvenience.
B.
Defendant shows that this item of damages is, under the law of this State, not recoverable by a plaintiff in an action to enforce the provisions of an insurance contract.
C.
Plaintiff therefore has no cause or right of action herein to assert this particular claim of damages and said claim should therefore be dismissed with prejudice. (Emphasis added)

In reasons for judgment sustaining defendant’s exception, the trial judge stated:

We agree with counsel for defendant that the peremptory exception of partial no cause or right of action directed toward plaintiff’s demand for damages for mental anguish, humiliation and inconvenience should be sustained and that such exception is proper under our law, Succession of Nelson, 163 La. 458, 112 So. 298 (1927), wherein the Supreme Court approved the sustaining of an exception which was addressed to a portion of a petition, even though in other respects the petition stated a cause of action. .
This holding was recently cited by the Court of Appeal for the Third Circuit in Tannehill vs. Tannehill, 226 So.2d 185, 189 (La.App. 3 Cir., 1969). (Emphasis added)

The defendant did not allege that plaintiff attempted to state more than one cause of action in this lawsuit.

We find the cases relied on by the trial court to be inapposite. In Succession of Nelson, a pre-Code of Civil Procedure case, one of the grounds alleged for annulling a will was stricken from the petition on an exception of no cause of action. The Supreme Court, on review after trial on the merits, approved this action of the trial court, which was the equivalent of upholding a motion to strike an insufficient demand. La.C.C.P. Art. 964. Tannehill v. Tannehill involved the cumulation of an action for divorce with an action for disavowal of paternity. The court of appeal upheld the dismissal of the paternity action on an exception of no cause of action.

The peremptory exception of no cause of action tests the legal sufficiency of the petition. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977) and cases cited therein.

Our Code of Civil Procedure does not provide for an exception of partial no cause of action. The effect of sustaining a peremptory exception is that the action shall be dismissed, not that part of the action be dismissed. La.C.C.P. Art. 934. Since defendant’s exception is leveled at only the allegations of and prayer for non-pecuniary damages, not the sufficiency of plaintiff’s demand for breach of contract, the exception should have been overruled.

Defendant’s use of the exception of no cause of action to strike an element of claimed damages represents an improper use of the procedural vehicle and illustrates the problem of piecemeal litigation which can result from the misuse of provisions intended to streamline our civil procedure.

The judgment sustaining the exception of partial no cause or right of action is set aside and the case is remanded for further proceedings. Costs are to await the final determination of the cause.

      . Art. 964.
      The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.
      The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.


text:
    L. E. PATRICK, Plaintiff-Appellee, v. Danny M. JOHNSTONE et al., Defendants-Appellants.
    No. 13565.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    En Banc. Rehearing Denied Aug. 15, 1978.

      Rabun & Post by Armand F. Rabun, James M. Dozier, Jr., Farmerville, for defendants-appellants.
    Gilmer P. Hingle, Monroe, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

The principal question presented by this appeal is whether the trial court was correct in ordering a partition by licitation of 35 acres of land owned in indivisión equally by L. E. Patrick and Joe Johnstone, and burdened by a mineral servitude owned by W. W. Johnstone created out of Joe John-stone’s undivided one-half interest in the land. For reasons stated herein we affirm.

When the case was first appealed to this court we remanded [312 So.2d 662], instructing the trial court to determine whether a partition in kind could be effected under the guidelines set forth in the applicable provisions of the Louisiana Civil Code, the new Mineral Code, and the jurisprudence. Specifically, our instructions were:

If the trial court determines that the parties did not stipulate to a partition by licitation, it should then proceed to determine if a partition in kind may be accomplished. In making this decision the court shall be governed by Civil Code Articles 1339, 1340 and the applicable jurisprudence. However, in ordering the partition anew the court must also adhere to the provisions of the new Mineral Code which became effective January 1, 1975. LSA-R.S. 31:1 et seq. Because the land in this case is burdened by a mineral right created by fewer than all the co-owners, a partition in kind may not be ordered unless it can be accomplished in such fashion that the allocation of tracts to the co-owners assures that both surface and mineral values of each tract are in the same proportion to the total value of the surface and mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively. LSA-R.S. 31:178. If a partition in kind may not be ordered, then the district court should order a partition by licitation in accordance with the provisions of LSA-R.S. 31:180 et seq.

Following trial on remand the district judge in an excellent written opinion stated:

“The law of this state with reference to the method of partitioning immovable property was summarized by the Supreme Court in the case of Babineaux v. Babineaux (1959) 237 La. 806, 112 So.(2) 620 as follows:

‘The Judge must order the property partitioned in kind unless it be proved that it is indivisible by its nature or that loss or inconvenience to one of its co-owners would be the consequence of dividing it. LSA-C.C. Articles 1336, 1337, 1339 and 1340.’

“It follows that the burden is upon the party requesting a partition by licitation to show that the property is indivisible by its nature or that loss or inconvenience to one of the owners would result from dividing it. In this case the plaintiff Patrick was petitioning for a partition by licitation. However, neither at the original tr»al nor in the proceedings held after remand did he offer any evidence at all tending to show that the property was indivisible in kind.

• “However, in determining this issue the Court must also consider the new Louisiana Mineral Code and particularly that portion designated as LSA-R.S. 31:178, which provides:

‘If land burdened by a mineral right or rights created by fewer than all of the co-owners of the land is judicially partitioned, a partition in kind may not be ordered unless it can be accomplished in such fashion that the allocation of tracts to the co-owners assures that both surface and mineral, values of each tract are in the same proportion to the total value of the surface and the mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively.’

“Procedural implications of the partition articles of the Mineral Code are discussed in an article entitled Co-Ownership Under the Mineral Code, Twenty Second Annual Institute on Mineral law, pages 150, 151 (1975) as follows:

‘The procedural partition articles of the Mineral Code essentially restate existing law. Only two extensions deserve special note, one disfavors the in kind partition of minerals and the other makes a mineral right owner a necessary party to any partition action.
‘Louisiana jurisprudence has long supported licitation as the most appropriate manner for partitioning “known mineral lands.” The courts found present technology inadequate to assess the mineral value underlying the various portions of such lands and, accordingly, could not with certainty divide the property in equal lots for in kind distribution. The Civil Code might have permitted an in kind division of the surface coupled with a licitation of the minerals, but no court felt bold enough to fashion this remedy. The Louisiana Supreme Court indicated that the party demanding partition by licitation had the burden of proving the property “known mineral land.” After this proof, the party resisting licitation had the burden of proving the property susceptible to an equitable in kind partition. The Mineral Code retains the presumption against in kind partition, but jettisons the “known mineral land” concept. The mere existence of a mineral right, carved from less than an entirety of the fee ownership, will now ordinarily compel partition by licitation without regard to the property’s mineral worth. This rule offers a new tool for land copro-prietors who prefer licitation to in-kind partition. They can reverse the Code of Civil Procedure presumption against lici-tation by granting a small royalty against their unburdened interests.’

“Taking into consideration the pertinent portions of the Mineral Code dealing with the subject of partitioning land, it now appears that the presumption against licitation can be overcome by the party requesting a partition by licitation by his simply proving that the land to be partitioned is burdened by mineral rights created by less than all the co-owners.

“It was established and accepted by all of the parties at the beginning of the original trial in this matter that this precise situation obtained in this case. While L. E. Patrick owned an undivided interest in both fee and minerals, Joe Earl Johnstone only owned an undivided interest in fee and William W. Johnstone only owned an undivided one-half interest in the minerals.

“Obviously, the burden is upon the party requesting a partition in kind to meet the requirements of Section 178 of the Mineral Code by showing that the partition in kind can be accomplished in such fashion that the allocation of tracts to the eo-own-ers assures that both surface and mineral values of each tract are in the same proportion to the total value of the surface and the mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively.

“To summarize, the present state of our law on the subject of partitioning immovable property is that initially there is a presumption in favor of partition in kind. This may be rebutted by one who seeks a partition by licitation by showing that the land to be partitioned is burdened by a mineral right created by fewer than all of the co-owners of the land to be partitioned. There then arises a presumption that the property is to be partitioned by licitation, which in turn can only be rebutted by proof on the part of the party advocating a partition in kind that the requirements set out in Section 178 of the Mineral Code have been met.

“In the case at bar, the defendants who were requesting a partition in kind offered no evidence whatsoever that this could be accomplished in the manner required by the terms of Section 178. Therefore, it is again the conclusion of this Court that the property must be partitioned by licitation rather than in kind.”

The opinion of the trial judge correctly sets forth the law and the facts. While some of the statements in our original opinion may seem inconsistent with the law as pronounced herein, we do not find this to be true when that entire opinion is read in connection with the instructions on remand. What we intended to hold then and what we hold now is that ordinarily partitions in kind are favored; however, where the land is burdened by a mineral right created by fewer than all the co-owners of the land, partitions by licitation are favored and the burden shifts to the party seeking a partition in kind to prove it can be accomplished under the guidelines set forth in Article 178 of the Mineral Code.

Appellants also complain that even if partition by licitation is proper, the partition should not have been ordered until the procedures set forth in R.S. 31:179-187 had been complied with. This complaint lacks merit. By the original and supplemental judgments the trial court ordered a partition by licitation of the property in accordance with R.S. 31:178 et seq., and appointed the notary and appraisers.

We find R.S. 31:180, 181, 182 and 183 clearly outline the procedures required to assure separate appraisal of the various interests; also to assure proper notice of and opportunity to oppose the appraisal before the court proceeds to homologate it and orders the sale and distribution of the proceeds. If this procedure is not followed, the mineral right of appellant W. W. John-stone in the property will not be affected. R.S. 31:184.

The judgment is affirmed at appellants’ cost.


author: PRICE, Judge.

text:
    Anna May Posey VETTER et al., Plaintiffs-Appellees, v. T. C. MORROW, d/b/a T. C. Morrow Oil Company, Defendant-Appellant.
    No. 13572.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    En Banc. Rehearing Denied Aug. 15, 1978.

      Hargrove, Guyton, Ramey & Barlow by Thomas J. Wyatt, David L. Smelley, Shreveport, for defendant-appellant.
    John S. Stephens, Coushatta, for plaintiff s-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

T. C. Morrow, d/b/a T. C. Morrow Oil Company, has appealed the judgment ordering a partial cancellation of an oil, gas, and mineral lease and awarding attorney fees to lessors.

The principal issue is whether the lessee acted as a reasonably prudent operator in developing the leased premises.

George J. Posey and his three children, Anna May Posey Vetter, Edwina Posey Glover, and Stephen John Posey, granted a mineral lease to defendant on July 16,1965, covering 385 acres in Sections 8, 17, and 18, T 12 N, R 10 W, of Red River Parish for a primary term of ten years. No drilling has taken place on any of the leased acreage during the primary term of the lease. The lease has been continued in effect since 1974 by the inclusion of a portion of the leased acreage in Sections 8 and 17 in drilling and production units established by the Commissioner of Conservation for the Ga-hagan Field from which gas has been produced in paying quantities from the Hos-ston Formation, Reservoir A.

Plaintiffs, who succeeded to the rights of George Posey by inheritance, brought this suit in August 1977 contending that defendant had failed and refused to properly develop the acreage lying in Section 18, which constitutes a substantial portion of total acreage leased, and that written notice had been given defendant on May 31, 1977, to begin operations within sixty days or to release that portion of the lease not included in the producing units. Plaintiffs contend defendant has not complied with their demand and request this portion of the lease should be ordered cancelled.

The trial court found that defendant had not developed the leased acreage in Section 18 in the Hosston zone as a reasonably prudent operator and ordered the lease can-celled as to this part of the leased premises. Plaintiffs were also awarded the sum of $2,500 for attorney fees under the provisions of La. R.S. 31:209.

The assignments of error of defendant present two issues on this appeal: (1) did plaintiffs offer sufficient proof to show defendant failed to act as a prudent operator in not having drilled a well to the Hosston Formation on the portion of the leased lands lying in Section 18; (2) did plaintiffs’ evidence support an award of attorney fees.

A mineral lessee is under a duty to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. La.R.S. 31:122. This article of the Louisiana Mineral Code adopted in 1974 does not change the rules previously declared by the Supreme Court in Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26 (1948), as follows:

The law of this state is well settled that the main consideration of a mineral lease is the development of the leased premises for minerals, and that the lessee must develop with reasonable diligence or give up the contract; further, that as to what constitutes development and reasonable diligence on the part of the lessee must conform to, and be governed by, what is expected of persons of ordinary prudence under similar circumstances and conditions, having due regard for the interest of both contracting parties, [cites omitted]

To fulfill his duty under the law a lessee has the obligation to develop known mineral producing formations in the manner of a reasonable, prudent operator and to explore and test all portions of the leased premises after discovery of minerals in paying quantities in the manner of a reasonable, prudent operator. See comments under La.R.S. 31:122; LeJeune v. Superior Oil Co., 315 So.2d 415 (La.App.3rd Cir. 1975); Carter v. Arkansas Louisiana Gas Co., supra.

In the instant case the discovery well in the Hosston Formation of the Gahagan Field, the Hoss RA Sand Unit B (referred to as the Huckaby Well) was drilled by third parties in Section 16 in 1972. The Commissioner of Conservation established a drilling and production unit coextensive with the governmental section (640 acres), and this pattern has been generally followed by the commissioner in subsequent wells drilled to the same formation in this field. In August 1974, the Rush Well in Sand Unit C was completed by third parties on land in Section 17. Eighty acres of the subject lease is situated in this section and was unitized by the commissioner into Sand Unit C. In August 1976, the Sally Hook Well was completed by third parties in Sand Unit J in Section 8 which lies directly north of Section 17. An additional thirty acres of plaintiffs’ leased lands are situated in this section and were unitized into this producing unit.

The remaining 250 acres of the leased land which plaintiffs seek to have released are situated in Section 18 which is directly west of Section 17.

Plaintiffs contend the substantial production obtained in the wells drilled in the adjacent sections to the east of Section 18 and the evidence submitted showing that the probable trend of producing sands is to the west toward Section 18, created a duty on defendant to develop the portion of the lease in this section without further delay.

Defendant contends he was justified in waiting for the results of a proposed well in Section 7 to the north before commencing drilling activity to the Hosston Formation in Section 18. In support of this position defendant offered the testimony of an expert witness, Roy Lee Rogers, Jr., a geologist, who testified generally that a prudent operator would drill Section 7 prior to Section 18. Rogers admitted however there were no significant geological reasons for this conclusion. His opinion was premised on the fact that defendant controlled more acreage in Section 7 and could begin drilling sooner and at a lesser cost to himself in this section than in Section 18. As plaintiffs own no lands in Section 7, these considerations exclusively inure to the benefit of the defendant and are not of mutual benefit to both parties as required by law.

Rogers also testified Section 7 was preferred since a well should be drilled near an already producing well to improve the chance of obtaining production. From the maps of the Gahagan Field filed in evidence, it appears that a well could be drilled in Section 18 substantially as close to the existing Rush Well in Section 17 as the proposed site in Section 7 is to the Hook Well.

In deciding whether development has been reasonable for the benefit of both lessor and lessee, the jurisprudence has usually considered the following factors: (1) geological data; (2) number and location of the wells drilled both on leased lands and adjoining property; (3) productive capacity of producing wells; (4) costs of drilling operations as compared with profits; (5) time interval between completion of the last well and the demand for additional operations; and (6) acreage involved in the disputed lease. (See Tulane Law Review, Vol. XXVII 353, at pp. 357-358.)

The relevant geological data reveals that the paying quantities production in the Hosston Formation lies in a westward direction from the initial discovery well, the Huckaby Well, located in Sand Unit B, which is the third best producer in the formation. Due west of the Huckaby Well is the Rush Well in Sand Unit C which is the second best producer, and to the northwest is the Hooks Well, which at the time of trial was the most prolific producer in the Hosston Formation. Plaintiffs’ property in Section 18 is directly west of the Rush Well and contiguous with Sand Unit C. Test wells drilled by other operators to the north, south, and east of the discovery well proved to be either unproductive or of marginal capacity.

The other pertinent factors to be considered reveal that eight wells were drilled altogether in the Gahagan Field in the Hos-ston Formation, Reservoir A, none of which was drilled on land leased by plaintiffs. The production obtained thus far in the western direction toward Section 18 has been very profitable when compared to the costs of drilling and maintaining the wells. The cost to drill a complete well to the Hosston Formation and have it ready for production ranges from $250,000 to $275,-000, and the monthly expenses are approximately $500 per month. The Rush Well, for example, at the time of trial was continuing to generate approximately $47,000 per month after the deduction of operating costs. It now produces approximately a million cubic feet of gas per day at a market price of $1.40 per MCF. The Huckaby Well continues to produce a half million cubic feet per day, and the Hook Well produces one and a quarter million cubic feet per day.

Although the time interval between demand on defendant (May 31, 1977) and the last completed well in the Hosston Formation was not excessive, this factor is not in itself controlling since defendant has made no substantial expenditure on the lease property which would justify a delay in commencing additional development. Further, 250 of the 385 acres leased by plaintiffs to defendant lie in the non-unitized, undeveloped Section 18.

The aggregation of these factors when weighed together are sufficient to sustain the trial judge’s finding that prudent development has not been performed by defendant, and that the lease should be annulled on the non-unitized lands in Section 18.

The second issue is whether the trial court’s award of $2,500 attorney fees was proper. Defendant contends that as no evidence was adduced at trial showing the value of legal services, an award cannot be granted. The trial court has the authority to fix reasonable attorney fees in the absence of expert testimony where the services rendered are under the eye of the court. Caldwell v. Trans-Gulf Petroleum Corporation, 311 So.2d 80 (La.App.2d Cir.1975). Without the aid of expert testimony, attorney fees should be commensurate with value of services rendered in the various proceedings reflected in the record and the complexity and nature of the case. The amount awarded by the trial court is within the discretion accorded it in such matters and should be affirmed.

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


author: HALL, Judge.

text:
    Raymond Lloyd HATFIELD, Plaintiff-Appellant, v. MINDEN BANK & TRUST COMPANY, MFA Mutual Insurance Company and Insured Lloyds, Defendants-Appellees.
    No. 13562.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    En Banc. Rehearing Denied Aug. 15, 1978.

      James B. Wells and Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Henry G. Hobbs, Minden, for defendant-appellee Minden Bank & Trust Co.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley and Frank M. Walker, Jr., Shreveport, for defendant-appellee Insured Lloyds..
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

A few weeks before plaintiff’s home was totally destroyed by fire, an officer of a bank which had a mortgage on plaintiff’s home and had in its possession a fire insurance policy issued by Insured Lloyds naming the bank as loss payee, caused the policy to be canceled by the insurance company. The issue on appeal in this suit by plaintiff to recover the $10,000 amount of the policy from the insurer, or alternatively the bank, is whether the policy was effectively canceled by the insurance company. Resolution of the issue depends on whether the bank officer had express, implied or apparent authority to order the policy’s cancellation or whether plaintiff ratified the cancellation. The district court held plaintiff ratified the cancellation by failing to protest after receiving notice of the cancellation from the insurance agency. We disagree, finding no authority on the part of the bank officer, no effective notice of cancellation, and no ratification by plaintiff. Accordingly, we reverse and grant judgment in favor of plaintiff against the insurance company for the amount of the policy.

The essential facts are substantially as stated in the trial court’s written opinion. Plaintiff Hatfield had a loan with the Sa-repta Branch of the Minden Bank & Trust Company, with a balance of approximately $7,000, secured by a mortgage on Hatfield’s home. The mortgage required Hatfield to carry fire insurance. In September 1974 the Bank received notice that the fire insurance policy naming it as loss payee was being canceled. Johnny Paxton, manager of the branch bank, tried to locate plaintiff but was unable to do so. Paxton called Walter Hull, manager of Anthony-Bryan Insurance Agency, and obtained a $10,000 fire insurance policy issued by Insured Lloyds effective October 1, 1974 for a one-year period and containing a mortgagee clause in favor of the Bank. The original policy was delivered to the Bank. The same day Paxton wrote plaintiff advising him that the policy had been obtained and that the premium would be charged to plaintiff’s account. The Bank paid the $131 annual premium and debited plaintiff’s checking account for that amount. The debit was shown and explained in plaintiff’s regular bank statement and he made no -protest or objection.

In the spring of 1975 Hatfield discussed with Paxton getting a Small Business Administration loan in the amount of $25,000 or $30,000 and was referred to the Bank’s main office in Minden. About this same time Hatfield contacted Dennis McMullen, an agent for MFA Mutual Insurance Company, about obtaining a fire insurance policy on his home, mentioning the SBA loan and the Bank’s requirement that he have insurance coverage sufficient to cover the loan. MFA limited the amount of the policy to $20,000. McMullen called Paxton to get the exact name of the mortgagee. A $20,000 policy was issued by MFA about the end of March, effective March 5, 1975. At some point in time between the end of March and the middle of June the MFA policy was delivered or mailed to Paxton. Also at some point in time the proposed SBA loan was canceled.

After receiving the MFA policy which Paxton thought came in the mail from the Dennis McMullen agency, Paxton contacted Walter Hull about the middle of June and discussed cancellation of the Insured Lloyds policy. Paxton assumed that the MFA policy was intended to replace the Insured Lloyds policy. Paxton mailed the original Insured Lloyds policy to Hull for cancellation. Hull then caused the Insured Lloyds policy to be canceled effective March 5, the effective date of the MFA policy. Hull’s office prepared an invoice addressed to Hatfield dated June 27, 1975, reflecting a premium credit of $66.63, showing the Insured Lloyds policy number but not mentioning the name Insured Lloyds, and containing the word “cancellation” under the policy number. Hull testified the invoice would have been mailed to Hatfield in the normal course of business and Hatfield testified he never received it. The trial court found that the invoice was sent to Hatfield and we accept that finding as supported by sufficient evidence. Hatfield had other insurance with Hull’s agency but there is no evidence that he had a balance due to the agency against which the return premium was credited and Hatfield never received the return premium although Hull offered to write him a check for it after the fire.

On August 23, 1975, about two months after cancellation of the Insured Lloyds policy, plaintiff’s home valued at $35,000 was totally destroyed by fire.

Insured Lloyds denied coverage based on cancellation of its policy. MFA refused payment to plaintiff under its policy based on alleged misrepresentations in the application for insurance, but paid the Bank the amount of its loan under the loss payee clause of the policy. Plaintiff filed suit against both insurance companies and the Bank. After trial the district court rejected MFA’s defense and granted judgment in favor of plaintiff against that company for the balance due under its policy. MFA paid the judgment and did not appeal. The trial court rejected plaintiff’s demands against Insured Lloyds and the Bank and plaintiff appealed.

Plaintiff’s position is that he obtained the MFA policy in order to have sufficient coverage, together with the Insured Lloyds policy, to cover his proposed SBA loan. Plaintiff contends the Bank officer was not authorized to direct cancellation of the Insured Lloyds policy and that the insurance company was not authorized to cancel it. Plaintiff denies having any knowledge of the cancellation until after the fire.

The position of the insurance company is that it' was entitled to rely on Paxton’s authority, either express, implied, or apparent, in cancelling the policy and that, in any event, Hatfield ratified the cancellation by failing to protest after receiving the invoice showing the cancellation. The Bank contends that Paxton acted reasonably in assuming that the MFA policy was sent to him as a replacement policy and in authorizing the cancellation of the Insured Lloyds policy.

It is not seriously argued that Pax-ton had express authority from Hatfield to instruct the insurance agent to cancel the Insured Lloyds policy. He never discussed the matter with Hatfield at any time. Neither was there implied authority from Hatfield to Paxton to have the policy canceled. Paxton’s action in obtaining the policy originally was ratified by Hatfield’s making no objection and allowing his account to be debited for the premium but that ratification carried with it no implied authority to later cancel the policy. Paxton’s assumption that the MFA policy was intended as a replacement for the Insured Lloyds policy is understandable, but was nothing more than an assumption. Paxton had no actual authority, either express or implied, to act for Hatfield in directing the cancellation of the policy.

Neither did Paxton have apparent authority to act for Hatfield in causing the cancellation of the policy. Apparent authority is a principle of estoppel which operates in favor of third persons seeking to bind a principal to an unauthorized act of an agent. In this context it is both fair and equitable to govern mutual rights and liabilities by the apparent scope of an agent’s authority, because third persons, who are not privy to the actual terms of the agency agreement, must rely entirely upon the in-dicia of authority with which the agent is vested. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973). Apparent authority, however, requires that the principal make manifestations to the third party in some form and that the third party reasonably rely on the agent’s purported authority as a result of the manifestations of the principal. Southwest Motor Leasing, Inc. v. Matthews Lumber Co., 325 So.2d 870 (La.App.2d Cir.1976). Apparent authority must flow from some act by the principal which leads the third person to reasonably believe that the agent is authorized to act for the principal. In this case, Hatfield did nothing to lead Hull, the insurance company’s agent, to believe that Paxton had authority to act for him. There was no contact whatsoever between Hull and Hatfield concerning this policy. The Bank’s possession of the original policy was as loss payee and in no way indicated apparent authority to cancel the policy. It was the purported agent’s actions, not the principal’s, on which the insurance company relied.

The policy was not canceled at the request of the insured, as provided for in the policy. The insurance company makes no contention that it effectively canceled the policy on its own initiative in accordance with the provisions of the policy.

The remaining and pivotal question then is whether plaintiff ratified the cancellation of the policy by failing to take any action after the invoice showing the premium credit was mailed to him at the end of July, less than two months before the fire. The trial court’s decision turned on a finding of ratification. It is this conclusion which this court finds manifestly erroneous.

The invoice, if received by plaintiff, does not by any means clearly reflect the cancellation of the Insured Lloyds policy. The name of the insurance company is not shown on the invoice. Plaintiff had other insurance with the same agency. The only information on the invoice connected with the policy is the policy number, which would be meaningless to most insureds, and the dates 3/5/75-10/1/75 under a column headed “Policy Period.” No other notice was given and the premium was not actually refunded to plaintiff nor does the evidence reflect that he was actually given credit against a balance owed to the agency. Because of the vagueness of the invoice, plaintiff cannot be held to have reasonably known that the Insured Lloyds policy, for which he had paid a premium for a period of one year, was being canceled effective March 5, 1975. In view of the lack of effective and clear notice and in view of the short period of time that elapsed between the time the invoice was mailed and the date of the fire, plaintiff’s failure to take any action cannot be held to have constituted ratification of the cancellation of the policy.

The cancellation was ineffective and Insured Lloyds is liable for the amount of the policy.

That part of the district court’s judgment rejecting plaintiff’s demandá against Insured Lloyds is reversed and there is judgment in favor of plaintiff, Raymond L. Hatfield, and against defendant, Insured Lloyds, in the amount of $10,000, with legal interest thereon from date of judicial demand until paid. The costs of appeal are assessed to Insured Lloyds.

Reversed and rendered.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Louise LANGENDORF, Stella Trauth, Agnes Roniger, George G. Braquet, Peter E. Braquet, Regina Braquet, Fannye Braquet and Louis J. Braquet v. The ADMINISTRATORS OF the TULANE EDUCATION FUND.
    No. 9196.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearings Denied Sept. 12, 1978.
    Writs Refused Oct. 26, 1978.

      Henry L. Klein, New Orleans, for plaintiffs-appellees.
    Chaffe, McCall, Phillips, Toler & Sarpy, C. Manly Horton, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

Defendant has appealed from a judgment which found it had breached its fiduciary duty as succession representative of the Succession of James Rogers and awarded plaintiffs, Rogers’ collateral heirs, the value of certain vacant land in Florida which Rogers owned at the time of his death and which was subsequently lost for nonpayment of taxes.

I

James Rogers died in March, 1959. His will left his entire estate to defendant and also named defendant as executor of his estate. When an inventory revealed the Florida land as a succession asset, defendant’s attorney contacted a Florida lawyer, seeking to have an ancillary administration so that defendant could be placed in possession of the property there. After some correspondence the Florida lawyer advised that under Florida law the will was invalid in form and could not pass title to Florida real estate, but suggested that since Rogers had no heirs (a fact stated by defendant’s attorney in an earlier letter), defendant could acquire ownership by not paying the taxes on the property and then buying the property at a tax sale.

At trial defendant’s attorney insisted he was unaware that Rogers had any heirs when he first contacted the Florida lawyer, but admitted he learned in November, 1959 that plaintiffs were Rogers’ heirs. He further stated that he told plaintiffs’ then attorney of their claim to the Florida land, but he did not write a letter with this advice, nor did he attempt to administer the property for their benefit.

Defendant purposefully did not pay the 1959 taxes, and in May, 1960 the Florida attorney purchased the property at tax sale on behalf of defendant.

In September, 1960 defendant filed a petition in the succession, alleging there was “no further need for any additional administration”, and judgment was rendered recognizing defendant as universal legatee and placing defendant in possession of “all of decedent’s property wherever situated”, although the Florida property was not included in the itemized descriptions.

Defendant subsequently failed to pay the taxes on the Florida land in 1962, 1963 and 1964, and the land was again sold for taxes in 1965.

II

Defendant contends it did not qualify as executor in Florida or in Louisiana and therefore owed no duty to the heirs to place them in possession of the Florida property. It further argues that succession property in two states is to be administered separately, as if there were two successions, and that even if it had qualified as executor in this state, a Louisiana court could not give authority to act in that capacity with respect to Florida property.

Defendant’s emphasis on lack of issuance of letters testamentary is misplaced. Acting in the succession proceedings on its appointment by will as executor, defendant had the will probated, obtained life insurance policies from the bank box and collected the proceeds thereof, and petitioned for a declaratory judgment (against plaintiffs) to declare the invalidity of a prohibition in the will against alienation of the real estate. Under the mandate defendant actively administered the Louisiana property and attempted to administer the Florida property, although never technically recognized as executor in either state, until no “additional administration” was necessary. A succession representative who is appointed as such in a will and by its action thereafter accepts the fiduciary position and undertakes to act as such, cannot escape liability for breach of a fiduciary duty on the basis that the representative failed to obtain judicial confirmation of its authority to act in this capacity.

As to the issue of duty, a succession representative, whether executor or administrator, has the duty to collect aII property of the succession. C.C.P. arts. 3191, 3211. He. has the further duty to preserve and manage the succession property as a prudent administrator. C.C.P. arts. 3191, 3221. Included in the latter is the duty to make necessary expenditures for preservation, such as payment of taxes. Succ. of Rhodes, 164 La. 488, 114 So. 107 (1927). And when all of the succession property is not disposed of by will, the succession representative has the duty to collect and preserve the remaining property for the legal heirs.

After learning it had no claim to the Florida land through the will, defendant devised a scheme to otherwise acquire ownership for itself. And while the scheme may have commenced without knowledge that plaintiffs were the legal heirs to the property, the scheme was accomplished after defendant’s attorney acquired this knowledge.

Defendant’s contention that it had no interest in the Florida land after learning of the invalidity of the will there is correct as to its interest as legatee, but under the circumstances of this case defendant could not simply disclaim any further responsibility as executor when it had never declined that mandate and in fact had tacitly accepted the appointment. Defendant had the duty at least to inform the legal heirs of their claim to the property and to preserve the property for a reasonable time thereafter so that the heirs could pursue their rights. And certainly defendant had a duty not to contrive a method of depriving the legal heirs of their claim to ownership.

The record supports a conclusion that defendant breached that duty. Defendant’s attorney’s statement that he told the heirs’ attorney in 1959 or early 1960 of their claim was denied by the latter, to the extent that he had no such recollection and no record of this information. The statement, furthermore, was inconsistent with defendant’s actions thereafter in neglecting to pay the taxes for the purpose of taking advantage of the nonpayment and then acquiring ownership for itself by buying the property at a tax sale. The trial court’s finding of a breach was not manifestly erroneous.

Ill

Defendant alternatively contends that any breach on its part amounted to a tort and that the cause of action prescribed in one year.

Plaintiffs’ initial cause of action was essentially one to recover the Florida land. When defendant failed to collect and preserve the Florida land for the legal heirs, but instead collected it for its own benefit, it breached its fiduciary duty and owed the heirs the return of the land (a possibility eliminated by the subsequent negligent failure to pay the taxes).

In an action founded upon the quasi-contractual obligation arising from the fiduciary relationship, the prescriptive period to compel a fiduciary to account for the property held in trust is ten years. Bills v. Pittman, 152 La. 907, 94 So. 439 (1922). Furthermore, in Hall v. Courtney, 184 La. 80, 165 So. 458 (1935), a suit by an emancipated minor against her tutor’s succession to recover property received by the tutor for the minor’s account, the court observed that the nature of the cause of action came under C.C. art. 2292 and was a personal action which prescribed in 10 years.

Prescription generally begins to run at the time of the occurrence of the facts which give rise to the cause of action. However, prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Dean v. Hercules, Inc., 328 So.2d 69 (La.1976).

In the present case plaintiffs were not aware defendant had acted contrary to its duty to preserve the Florida property for them as legal heirs until less than 10 years before this suit was filed. Moreover, there is no suggestion plaintiffs’ ignorance of this breach of duty was willful or resulted from their neglect. The exception of prescription was properly overruled.

IV

The trial court awarded $10,000.00, representing the value of the property when it was lost for taxes in 1965.

The basic theory of reparation is that the damaged party should be returned as nearly as possible to his condition prior to the act which caused the damage. In the present case defendant’s obligation would have been to return the property if plaintiffs had become aware of their rights prior to 1965 when the property was lost for taxes, and there would have been no need to measure recovery in monetary terms. Once the property was lost, however, defendant’s obligation was to pay plaintiffs the value of the land or the amount necessary to purchase the same or similar land.

Generally, the amount of recovery for property lost or destroyed is the value at the time of the loss, which is the earliest time the damaged party can file suit for recovery of a monetary award. The theory is that it would be inequitable to allow a claimant to delay asserting a cause of action, once it arose, and then receive the advantage of a subsequent enhancement in value. After the time a cause of action arises on an obligation for payment of money, the damages due for delay in the performance of an obligation to pay money are measured as interest. C.C. art. 1935.

Before 1965 plaintiffs could not have filed suit for recovery of a monetary award, because they were not yet aware they had been deprived of their claim to ownership of the Florida property. The record does not establish exactly when they thereafter learned of this claim, but in the absence of proof of a different time the date of the loss by tax sale in 1965 was properly used.

Defendant presented an appraisal of $8,000.00, and plaintiffs presented one of $12,000.00. While defendant’s appraisal was more detailed and its appraiser had more impressive. qualifications, we cannot say the trial court erred in setting the 1965 value at $10,000.00.

V

Plaintiffs’ request for attorney’s fees, reasserted by answer to the appeal, was properly denied.

Attorney’s fees are generally awarded pursuant to a statute or a contract. Fees have been awarded as damages under exceptional circumstances, such as in Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972), in which the attorney’s fee incurred to correct another attorney’s professional error was awarded as an item of damages in a legal malpractice action.

The present case is not a legal malpractice case, and the breach of duty was not committed by a lawyer in a contractual relationship with plaintiffs, but by a succession representative in a fiduciary relationship.

The judgment is affirmed.

GULOTTA, J., concurring in part and dissenting in part.

GULOTTA, Judge,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that Tulane breached its fiduciary duty, but I dissent from that part of the judgment which awards plaintiffs the value of the property at the time of loss (the tax sale) rather than the value at the time of trial.

LSA-C.C. art. 1934(2) provides:

“When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as \yere, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract . . . .”

Though it is true plaintiffs’ case is one in quasi-contract rather than contract, the Co-dal provision is applicable. Tulane was in bad faith. But for its action these plaintiffs would be entitled to ownership of this real estate. Since the property is now owned by a third party, plaintiffs’ only adequate relief is judgment for the value of the property at the time of trial. To deprive plaintiffs of the real estate’s appreciation in value since the date of the tax sale which resulted from Tulane’s bad faith is an inequitable result.

Accordingly, I would amend the judgment to award plaintiffs the value of the property as of the date of trial. See Dissent in Womack v. Sternberg, 247 La. 566, 172 So.2d 683 (1965).

      . This will was the subject of two previous lawsuits. See Succ. of Rogers, 138 So.2d 251 (La.App 4th Cir. 1962), and Braquet v. Administrators of Tulane Educ. Fund, 304 So.2d 720 (La.App. 4th Cir. 1974).

      . This is true even with regard to the Florida property, notwithstanding that defendant could not have qualified under the will as executor there and that it had no judicial authority to act in that state. Defendant undertook, as succession representative, to commence ancillary proceedings in Florida and in that capacity learned that the true owners of the Florida property were the testator’s legal heirs.

      . After filing suit against plaintiffs for declaratory judgment in December, 1959, defendant authorized the Florida lawyer in April, 1960 to proceed with the tax sale “arrangement”.

      . If defendant had continued to pay the taxes and still owned the property, the claim would still be one for ownership. Plaintiffs were subsequently relegated to a cause of action to recover the value of the property because defendant lost the property for taxes.

      . C.C. art. 2292 provides:
      “Certain obligations are contracted without any agreement, either on the part of the person bound or of him in whose favor the obligation takes place.
      “Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.
      “The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inheritance, and other cases of a like nature.

      “The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.” (Emphasis supplied)