author: JONES, Judge.

text:
    William A. SMITH, Ditta Investments Inc., John E. Boullt, and A. M. Camp, Plaintiffs-Appellants, v. WEST VIRGINIA OIL & GAS CO., et al., Defendant-Appellee.
    No. 13661.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Rehearing Denied Dec. 13, 1978.

    Writ Granted Feb. 9, 1979.

      William A. Hargiss, Monroe, for plaintiff-appellant.
    Oliver & Wilson by C. McVea Oliver, Monroe, for appellee.
    George M. Wear, Monroe, for sublessees.

      Before PRICE, MARVIN and JONES, JJ.

       PRICE & HALL, JJ., dissented from refusal to grant rehearing.

   JONES, Judge.

Plaintiffs, William A. Smith; Ditta Investments, Inc.; A. M. Camp and John E. Boullt, appeal an interlocutory judgment rejecting their application for a preliminary injunction enjoining defendant, West Virginia Oil and Gas Company, Inc. from constructing a gas pipeline on plaintiff Ditta’s property, and alienating gas from plaintiffs’ property.

The four plaintiffs own the minerals on separate tracts of land totaling 160 acres depicted by diagonal lines on the plat be-

Smith--W-l/2 of SW-1/4 of NW-1/4

Dicta Investments- E-l/2 of SW-1/4 of NW-1/4-

NW-1/4 of SW-1/4 less

North 60 feet of W-l/2

Boullt.NE-1/4 of SW-1/4

Camp--SE-1/4 of SW-1/4

All plaintiffs own the surface and minerals except Camp -who owns the minerals only, having sold his tract with a reservation of minerals in 1969.

In 1919 West Virginia Timber Company granted a mineral lease covering 19,000 acres to Henry Bernstein. The lease contained no primary term, but required the lessee to drill five wells. The first well was required to be commenced within 90 days of the execution of the lease. At least one succeeding well was required to be started within 60 days of the completion of each former well until the total of five wells had been drilled. Each producing well would earn a lease on approximately 3000 acres surrounding it and the lease would continue as long as minerals were produced in paying quantities.

On March 12, 1920, Henry Bernstein assigned the lease insofar as it was applicable to approximately 2800 acres to West Virginia Oil and Gas Company, Inc. The 160 acres owned by the plaintiffs were included within the acreage assigned. On October 14, 1929, the successor of Henry Bernstein, lessee, assigned the lease insofar as it was applicable to approximately 245 acres to ShoVan Producing Company, Inc. Neither of these acts of assignment contained any overriding royalty nor any control of the assigned acreage nor was there any requirement that the assignee drill any wells on the assigned acreage.

On January 16, 1945 a Stipulation and Transaction of Compromise was executed in the matter styled “George Breece Lumber Company, Inc., et al. v. West Virginia Oil and Gas Company, Inc., et a 1. on the docket of the U.S. District Court for the Western District of Louisiana wherein the owners of the property subject to the Bernstein lease and the current owners of the lease in settlement of the litigation cancelled the lease except insofar as it affected approximately 1000 acres of the leased acreage. The acreage retained subject to the lease included a portion of that assigned to West Virginia and the acreage assigned to ShoVan, and 80 acres assigned to Union Producing Company. The language of the stipulation and transaction of compromise with regard to the West Virginia and ShoVan acreage which remained subject to the lease is as follows, to-wit:

“2. It is stipulated and agreed that the West Virginia Oil and Gas Company, Inc., by adequate development pursuant to the terms of the mineral leases from the West Virginia Timber Company and/or George Breece to Henry Bernstein, has earned a lease (which is hereby ratified, confirmed and acknowledged so long as oil or gas is produced and marketed therefrom) on the following described land:
T 18 NR 4E
Sec. 5 - W-V2
Sec. 8 - N-% of NW-V4
T 18 NR 5E
Sec. 3 - E-Va of NW-%
Sec. 3 - NW-Vi of SW-Vi
See. 4 - NE-Vi
3. It is stipulated and agreed that the ShoVan Producing Company, Inc., by adequate development pursuant to the terms of the mineral lease from the West Virginia Timber Company and/or George Breece to Henry Bernstein, has earned a lease (which is hereby ratified, confirmed and acknowledged so long as oil or gas is produced and marketed therefrom) on the following described land:
T 18 NR 4E
Sec. 8 - Lots 2, 3, 4, 5
SW->/i of NE-l/4
Sec. 7 - Lots 1, 2, 3
Sec. 6 - Lot 11”

This compromise agreement was incorporated in a final decree of the court by judgment rendered in the matter on May 9, 1945. The compromise reduced the 2800 acres received by West Virginia in the assignment from Bernstein to approximately 680 acres and provided the lease would continue “so long as oil or gas is produced and marketed therefrom.”

West Virginia drilled numerous producing wells upon the leased premises but all wells had ceased to produce prior to 1977 with the exception of one well located on the N-Vfe of the NWVi of Section 8 shown on the plat as West Virginia well No. 8. This well stopped producing entirely in November of 1977 because of a gas leak in the line. This leak was only repaired and production resumed on March 10, 1978. This well only produced 6599 MCF of gas during 1977 and the gas was sold by West Virginia at the rate of 9<f per MCF pursuant to a gas contract then in force. The well under these circumstances produced gas in 1977 valued at $593. Expenses related to the upkeep of the well in 1977 were $1,592.07. There was no evidence that the production of the well following the repair of the leak in the line would be any better than it had been during the year 1977.

In 1974 West Virginia entered into a farmout agreement to sublease to Roy M. Teel, after such time as Teel had drilled and completed wells commercially producing gas on the leased tract. In September and October of 1977, Teel and his assignees, in an effort to earn the sublease under the farmout agreement, drilled one well on each of the four plaintiffs’ property which are reflected by squares on the plat. These wells are capable of producing gas but have never been placed in production.

On December 13, 1977, plaintiffs Ditta and Smith made demand by letter upon defendant for an act reflecting that the lease had terminated for failure to produce in paying quantities. Plaintiff Boullt wrote a similar letter demanding cancellation of the lease on December 21, 1977 and plaintiff Camp wrote such a letter on February 11, 1978. Defendant did not respond to the demand for cancellation and on March 1, 1978 plaintiffs filed this suit to cancel the West Virginia lease for cessation of production, failure to produce in paying quantities, and for damages for drainage. On that date, Herbst (Teel’s assignee) wrote Ditta advising it he intended to construct a pipeline along the east boundary of Ditta’s property for the purpose of connecting the newly drilled gas wells to a meter station of the City of Monroe with whom he had entered a contract to sell the gas contemplated to be produced from the new wells. Upon receipt of this letter, plaintiff amended his suit and sought a temporary restraining order (which was granted), a preliminary injunction and thereafter a permanent injunction enjoining West Virginia and all persons acting upon their behalf from the construction of the pipeline and production of the gas from the recently drilled wells on plaintiffs’ property. Plaintiffs initially sued West Virginia as an unincorporated association, but thereafter on March 10, 1978 amended their petition alternatively suing West Virginia as a corporation.

On November 22, 1977 West Virginia executed a sublease to Roy M. Teel which covered the plaintiffs’ property. This sublease was not recorded until January 26, 1978 and there was no evidence that notice of the sublease was ever sent to plaintiffs as contemplated by LSA-R.S. 31:132. Under these circumstances, plaintiffs were not required to make demand upon the subles-see or his assignee.

Following the trial of rule for preliminary injunction, the trial judge dismissed the plaintiffs’ suit against West Virginia as an unincorporated association, found that plaintiffs had failed to establish that they were entitled to have the lease cancelled or that they would suffer irreparable damage by virtue of the construction of the pipeline and production of gas, and for these reasons terminated the TRO and denied the preliminary injunction. The trial court refused to hold defendant in contempt for clearing the right-of-way for the pipeline after the issuance of the TRO, but prior to service upon the defendant, and ordered plaintiff to join indispensable parties.

The issues on appeal are: (1) were plaintiffs entitled to a preliminary injunction to protect their property rights? (2) are plaintiffs estopped from asserting cancellation of the lease? (3) did plaintiffs establish irreparable injury sufficient to justify issuance of a preliminary injunction? (4) was the suit against West Virginia as an unincorporated association properly dismissed? (5) was trial court correct in refusing to hold defendant in contempt for clearing right-of-way for pipeline after the issuance of the TRO but before it was served with it? and (6) do plaintiffs have the right of appeal from the trial court’s judgment ordering plaintiffs to join indispensable parties?

PRELIMINARY INJUNCTION

C.C.P. Article 3601 provides: “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” A preliminary injunction is available for the protection of ownership, possession or enjoyment of property. C.C.P. Article 3663. Bagents v. Crowell Long Leaf Lumber Co., 20 So.2d 641 (La.App. 1st Cir. 1945); Moorhead v. State Through the Department of Highways, 322 So.2d 330 (La.App. 2d Cir. 1975).

A plaintiff does not have to prove irreparable injury when he seeks to enjoin defendant from a course of action forbidden by law. Whalen v. Brinkman, 258 So.2d 145 (La.App. 1st Cir. 1972).

In Marrero Land & Improvement v. Duplantis, 221 La. 540, 59 So.2d 829 (1952) plaintiff proved he owned the property and the court enjoined defendant who had constructed canals on plaintiff’s property from interference and trespass to plaintiff’s property.

In Nomey v. State of La., Department of Highways, 325 So.2d 732 (La.App. 2d Cir. 1976) plaintiff produced evidence he owned this property, while defendant produced no evidence of the existence of servitude. The court held plaintiff had established a prima facie case and issued a preliminary injunction prohibiting defendant from doing construction work on plaintiff’s property.

The plaintiff is required to establish a prima facie showing that he is entitled to a preliminary injunction. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974); Employers Overload v. Employers Overload Co. of New Orleans, 266 So.2d 546 (La.App. 4th Cir. 1972) and Moorhead v. State, supra.

The trial court found the plaintiffs had established at the hearing on the preliminary injunction that they owned the minerals under the 160 acres on which they sought to have the defendant’s lease can-celled. There is ample evidence in the record to support this finding. The defendant made no attempt to establish that the minerals claimed by the plaintiffs were owned by others. We find the record established a prima facie case that the minerals were owned by the plaintiffs.

The lessor’s royalty computed upon an annual total production of $593 would amount to only 21<t per day for gas produced from the only well on the leased premises during the year 1977 and the maintenance of the well required the expenditure of $1,507.92. Under these circumstances LSA-R.S. 31:124 requires the conclusion that there was no production and marketing of minerals from the leased premises in paying quantities. See Parten v. Webb, 197 La. 197, 1 So.2d 76 (1941) where royalty averaging less than 50<t per day was considered not to be production in paying quantities.

The defendant offered no evidence of any production from its acreage other than that above described. The defendant attempts to establish that its lease is producing in paying quantities by proving that the acreage included in the original Bernstein lease agreement and assigned to Sho-Van was producing in paying quantities. There is sufficient evidence in record from which it could be concluded that the Sho-Van acreage was producing in paying quantities.

The production on this acreage cannot be considered for the purpose of determining whether West Virginia’s lease is producing in paying quantities. The Bernstein lease was effectively divided by the compromise agreement executed between the owner of the land subject to the lease and the owners of the lease on January 16, 1945 which was incorporated in the federal court judgment of May 9, 1945.

In the decision of Smith v. Sun Oil Co., Inc., 165 La. 907, 116 So. 379 (1928), the court stated that an assignment by the lessee wherein he assigns a portion of the acreage included within the lease to another without retaining any overriding royalty, or without otherwise placing any obligation on the part of the assignee with regard to the acreage so assigned, has the effect of dividing the lease, when the original lease contains an agreement between the lessor and lessee permitting the division of the lease. Thereafter, production on the assigned portion of the land cannot be considered as production upon that portion of the original lease not included within the assignment.

In the decision of Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46 (1931) the rational of Smith v. Sun Oil was followed. The assignor retained no overriding royalty nor did he require the assignee to drill a well nor did the assignor otherwise retain any control over the assigned acreage. The lease specifically provided for division of the lease. The court held production on the assigned acreagé could not be considered production upon the acreage included in the original lease and not assigned because the lease had been divided.

A review of the assignment of the leased acreage to West Virginia and of the assignment of the leased acreage to ShoVan reflects that the assignor in neither document retained any overriding royalty nor did he place any drilling obligation or obligation of other kind in connection with the lease performance upon the assignee which circumstances are identical to those contained in the act of assignment reviewed in Roberson v. Pioneer.

The Bernstein lease contained no specific provision authorizing the division of the lease such as required by Smith and Roberson. The stipulation and transaction of compromise executed on January 16, 1945 supplies the requirement of Smith and Roberson that the lessor agree to the division of the lease. This document and judgment rendered pursuant to it establishes that subsequent to these transactions that the lease owned by West Virginia would remain in existence only so long as there was production upon the acreage adjudicated as covered thereby. Production by ShoVan upon its confirmed leased acreage would not have the effect of maintaining the viability of the West Virginia lease because acreage subject to these assignments had been divided into separate leases and could no longer be considered as one leased tract under the Bernstein lease.

Not only did West Virginia fail to produce minerals from its leased acreage in paying quantities during the year 1977, it failed to produce any minerals whatsoever from the leased premises from November 1977 up to about the day of the trial of the preliminary injunction on March 10, 1978.

Defendant argues that the four wells which were drilled upon plaintiffs’ property by sublessee Teel in September and October of 1977 had the effect of maintaining the viability of the lease.

“Where the output of a gas well either cannot be, or in fact is not, (emphasis added) disposed of, the well cannot be said to be a paying proposition either for the owner of the land or for the owner of the well; and, where a well has ceased to be a paying proposition for any one concerned, it has clearly ceased to produce gas in paying quantities.” Smith v. Sun Oil, 172 La. 655, 135 So. 15 (1931).

In the decision of Davis v. Laster, 242 La. 735, 138 So.2d 558, 565 (1962) a gas well drilled and completed capable of production was permitted to maintain the lease beyond the primary term solely upon the basis that constructive production was in effect by virtue of the lessee paying shut-in royalties:

The production required to maintain the lease must be either actual or constructive. It is not actual production here. Lessees, by paying the shut-in royalty prior to the expiration of the primary term, seek thereby to put constructive production into operation effective with the expiration of the primary term and thereby continue the life of their lease.
The shut-in clause is specifically designed to enable the lessees to protect their investment in a shut-in well beyond the primary term — for, at the expiration of the primary term, they can no longer pay delay rentals to maintain the lease and they cannot produce the gas from the well they have discovered where no market is available. Therefore, if it were not for the shut-in clause, and the constructive production resulting from its application, the lease would be forfeited for expiration of its term at the end of the primary term.

In the instant case there was no provision for shut-in royalty provided for in the Bernstein lease. There has been neither actual nor constructive production from the four wells drilled on the plaintiff’s property during September and October 1977. Because of the absence of production and marketing, the lease has terminated. See Landry v. Flaitz, 245 La. 223, 157 So.2d 892 (1963) wherein the court held that drilling of a well capable of producing minerals in paying quantities does not satisfy the requirement that oil, gas or some other minerals be produced in order to continue the lease beyond the primary term.

The defendant pleads in its answer that plaintiffs are estopped to claim the lease terminated because they allowed the drilling of the wells on their respective property. There is no evidence that the plaintiffs did anything to encourage the drilling of these wells and for that reason there is no basis for the consideration of the issue of estoppel.

Defendant asserts that plaintiffs Smith and Ditta are particularly estopped from urging the cancellation of the lease because they signed an agreement permitting Teel to cross their property included in this litigation to a well site located on another tract owned by Smith. This agreement was signed after the defendant’s sub-lessee had obtained a temporary restraining order enjoining Smith and Ditta from “denying or attempting to deny petitioner and his drilling contractor ingress and egress to the following described property:

NE-Vi of SE-Vi of Section 6, Township 18 North, Range 4 East, Ouachita Parish

and further restraining, enjoining and prohibiting them from preventing or attempting to prevent plaintiff and Vernon Thompson and employees, from the drilling of the well that had been spudded in on the said property.”

The TRO was obtained following Ditta’s physical obstruction of the sublessee from access across his property which the subles-see needed to cross in order to get to property owned by Smith, but on which Smith did not own the minerals, on which the well site was located. The suit was not pursued beyond the TRO because of the execution of the agreement contained in footnote 5.

A review of this agreement reflects that Ditta and Smith each received $1,000 for damages for a 6 foot right of way on each side of their respective property line and along a preexisting cleared Louisiana Power and Light Company right-of-way. This agreement also contained a promise by Dit-ta and Smith “not to interfere with the lessee’s ingress and egress along the above mentioned path and cleared Louisiana Power and Light Company’s right of way, or with lessee’s operations on the West Virginia Oil and Gas Company lease.” The situation wherein this agreement was signed dealt with a problem related to West Virginia’s exercise of rights as a lessee for the purpose of drilling a well on acreage not included in the present law suit and under which the minerals were not owned by Smith. Under these circumstances this agreement cannot be construed to mean that Smith and Ditta intended by its terms to confirm the existence of a valid lease in favor of West Virginia on the 80 acres owned by them involved in the present litigation, on which there had been no production since 1959. This agreement cannot be construed to create a lease where one did not in fact exist. This September agreement had no effect on Smith and Ditta’s right to demand a cancellation of the lease following the total cessation of production in November 1977, nor upon their right to demand such cancellation when their investigation disclosed an absence of production in paying quantities from the lease prior to its total cessation of production.

There is no reason why the defendant is in a different, more advantageous position than the lessees in Smith v. Sun Oil, 172 La. 655, 135 So. 15 (1931) and Landry v. Flaitz, supra, who drilled their wells while the lease was clearly valid and yet the existence of these wells capable of production, but not in production, did not serve to meet the lease requirements of production in paying quantities.

Plaintiffs are not required to establish irreparable harm in order to enjoin the interference with their right of possession and ownership by the defendant who has no lease upon their property. Plaintiffs are entitled to a preliminary injunction under the provisions of C.C.P. Article 3663.

DISMISSAL OF PLAINTIFFS’ SUIT AGAINST AN UNINCORPORATED ASSOCIATION

Defendant filed articles of incorporation with the recorder of mortgages of Ouachita Parish, Louisiana on March 3, 1920, but failed to file a certified copy of the article with the Secretary of State as required by Act 267 of 1914 and LSA-R.S. 12:25 of the 1968 Business Corporation law. Following the recordation of these articles of incorporation, defendant engaged in numerous activities in a corporate capacity and became a de facto corporation. Bond and Braswell v. Scott Lumber Co., 128 La. 818, 55 So. 468 (1911); Supreme Council of the Valley Free and Accepted Order of America v. Lee, 171 La. 433, 131 So. 289 (1930). The defendant properly recorded its articles of incorporation in the office of the Secretary of State on March 13, 1978, and received a formal certificate of incorporation from that office. Under these circumstances the trial court’s dismissal of the suit herein directed against West Virginia as an unincorporated association was proper.

NONJOINDER OF INDISPENSABLE PARTIES

Plaintiff appeals the trial court’s judgment sustaining defendant’s exception of nonjoinder of indispensable parties. The judgment provides: “plaintiff shall have a period of ten (10) days from the date hereof within which to join all indispensable parties.” Such ruling is an interlocutory judgment and is not before this court on appeal. No judgment was rendered dismissing plaintiffs’ suit for noncompliance with the trial court’s order to amend the petition to join indispensable parties within ten days. Should the trial court dismiss plaintiffs’ action for failure to amend, the judgment will be final and appealable. People of Living God v. Chantilly, 251 La. 943, 207 So.2d 752 (1968); Williams v. DeSoto, Bank & Trust Co., 185 La. 888, 171 So. 66 (1936); Washington v. Flenniken Construction, 188 So.2d 486 (La.App. 3d Cir. 1966); Ricks v. Roberson, 349 So.2d 961 (La.App. 1st Cir. 1977).

CONTEMPT

The defendant was not guilty of contempt of court for clearing of the pipeline right of way prior to the service of the TRO.

SUMMARY

For reasons assigned, the trial court judgment insofar as it denies the plaintiffs a preliminary injunction is reversed and set aside. The judgment is amended to provide:

IT IS ORDERED that conditioned upon plaintiffs’ giving bond with good security in an amount to be set by the district court that West Virginia Oil and Gas Company, Inc., its agents, employees and sublessees, and all persons in concert with them, are enjoined from entering upon the property of the plaintiffs for the purpose of constructing a pipeline and are enjoined from disposing, alienating, or producing any gas from plaintiffs’ property.

The case is remanded to the district court for the purpose of having the trial judge set the amount of the bond required by C.C.P. Article 3610, and for further proceedings in accordance with law.

As amended, the trial court’s judgment is affirmed at the cost of the appellees.

      . On January 18, 1978, Teel assigned a part of his interest in the farmout agreement to his daughter, Margaret Herbst, wife of Peter Herbst, and to his son, Roy M. Teel, Jr. These instruments were recorded on January 26, 1978.

      . “An assignee or sublessee is bound by any notice or demand by the lessor on the lessee unless the lessor has been given written notice of the assignment or sublease and the assignment or sublease has been filed for registry. If filing and notice have taken place, any subsequent notice or demand by the lessor must be made on the assignee or sublessee.” LSA-R.S. 31:132.

      . C.C.P. Art. 3663 provides that: “Injunctive relief, under the provisions of Chapter 2 of Title 1 of Book VII, to protect or restore possession of immovable property or of a real right, is available to: .

        (2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

      . “When a mineral lease is maintained by production, the production must be in paying quantities. It is considered to be in paying quantities when the production allocable to the total original right of the lessee to share in production under the lease is sufficient to induce a reasonably prudent operator to continue production in an effort to secure a return on his investment or to minimize any loss.” LSA-R.S. 31:124.

      . “Monroe, Ouachita Parish, Louisiana
      September 20, 1977
      This document will evidence our agreement as follows:
      Definitions:
      “Ditta” shall mean Ditta Investments, Inc., David Ditta and Victor Ditta.
      “Smith” shall mean William A. Smith
      “Lessee” shall mean West Virginia Oil and Gas Co., its successors and assigns, including without limitation Peter Herbst and Roy M. Teel, Jr.
      “Landowners” shall mean “Ditta” and “Smith”
      Landowner agrees that Lessee, in order to gain access to its drill sites on Landowner’s property, shall have the right to clear a path 12 feet in total width, the center of which shall be the property line between Smith and Ditta which divided the E/2 and W/2 of the SW/4 of the NW/4 in Section 5, Township 18 North, Range 4 East, Ouachita Parish, said path to be 6 feet in width on the Ditta property and 6 feet in width on the Smith property and shall extend from the Smith Road to the Louisiana Power and Light cleared right-of-way. Lessee shall conduct all clearing operations in a workmanlike manner, remove all debris, level its ground and relocate Smith’s existing fence on Smith’s side of the path. Landowner further agrees that Lessee may use the cleared right of way of Louisiana Power and Light to gain access to drill sites and wells located on the West Virginia Oil and Gas Company lease. Lessee’s right to use said path for access shall be subject to the right of landowners to designate another route of ingress and egress to drill sites or wells on the West Virginia Oil & Gas Company Lease which new route must provide Lessee with reasonable access to those wells. In constructing the 12 foot path, Lessee shall install a culvery, cattle guard, or similar installation sufficient to allow normal drainage of the ditch adjacent to Smith Road.
      Lessee shall pay the sum of $1,000.00 each to Smith and Ditta, which sum shall be solely for compensation of all damages incurred by Landowner by reason of clearing the above mentioned 12 foot path, but shall be all compensation due therefor.
      Lessee shal pay the sum of $616.00 to Ditta and $300.00 to Smith, which sum shall be solely for compensation of all damages and attorneys fees incurred by Ditta and/or Smith by reason of the issuance of a temporary restraining order against them on September 15, 1977, but shall be all compensation due therefor.
      Lessee agrees to restore the driveway of David Ditta to its condition as it existed prior to Lessee’s recent use thereof.
      Landowners agree not to interfere with Lessee’s ingress and egress along the above mentioned path and cleared Louisiana Power and Light right of way or with Lessee’s operations on the West Virginia Oil and Gas Company Lease.
      Lessee agrees that his claim for damages and attorney fees of whatever nature resulting from Landowners’ actions occurring prior to the date of this agreement may not be asserted in any legal proceeding except as set off and compensation for present Lessee’s operations on Landowners’ property. Such damages alleged to have been sustained by Lessee shall be subject to proof in accordance with law as to both Landowners’ alleged liability therefor and the amount of said damages, provided, however, that Lessee agrees that the damages sustained by Lessee prior to the date of this agreement shall not exceed the sum of $9,000.00. Except insofar as said damages may be claimed by Lessee as set off and compensation as herein-above provided, Lessee hereby releases Landowners from any and all liability therefor.
      All parties agree to meet at the earliest mutually convenient date and to negotiate in good faith an agreement regarding all surface operations to be conducted by Lessee in the future, to definitely fix the area of the surface which Lessee shall be entitled to use and to provide covenants by Lessee not to use the remaining surface area.
      Landowners specifically reserve all rights to claim present or future damages resulting from Lessee’s present or future operations on Landowners’ property except for those hereinabove settled.
      All persons who sign this document hereby represent to all other parties to this agreement that they are duly authorized and empowered to act for the persons, firms or corporations for whom they execute this agreement.
      WITNESSES:
      Mary S, Johnson /s Una Williams 7~s

      Mary S. Johnson /s Una Williams fs

      Mary S. Johnson/s Una Williams /s
      Mary S. Johnson/s Una Williams 7~s
      Mary S. Johnson/s Una Williams /s
      DITTA INVESTMENTS, INC., DAVID DITTA AND VICTOR DITTA
      By: David Ditta /s By : Victor Ditta ~7~s
      WTilliam A. Smith /s WILLIAM A. SMITH
      WEST VIRGINIA OIL AND GAS CO. By: James H. Trousdale, Jr./s
      ROY M. TEEL, JR., by Peter Herbst
      By: Peter Herbst /s PETER HERBST
      George Wear Jr./s NOTARY PUBLIC

      . C.C.P. Art. 3610 — “A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.”


source: Caselaw Access Project

license: Public Domain

text:
    Eric LeRoy MAYS and Gloria Johnson Mays, Plaintiffs-Appellees, v. AMERICAN INDEMNITY CO. and William R. Thomas, Defendants-Appellants. AMERICAN INDEMNITY CO. and George L. Thomas, Plaintiffs in Reconvention-Appellants, v. Eric LeRoy MAYS and State Farm Fire and Casualty Co., Defendants in Reconvention-Appellees.
    No. 13680.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    En Banc. Rehearing Denied Dec. 13, 1978.

    Writ Refused Feb. 9, 1979.

      Booth, Loekard, Jack, Pleasant & LeSage by James E. Bolin, Jr., Shreveport, for plaintiffs and defendant in reconvention-appellees, Eric LeRoy Mays.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree and Charles G. Tutt, Shreveport, for defendants and plaintiffs in reconvention-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for State Farm Fire & Casualty Co. — defendant in reconvention-appellee.
    Before HALL, MARVIN and JONES, JJ.

       Bolin, J., recused.

   JONES, Judge.

Defendants American Indemnity Company and William R. Thomas, appeal a judgment awarding damages against them in favor of Eric LeRoy Mays and his wife, Gloria Mays, as a result of a collision between an automobile driven by William R. Thomas and a horse ridden by plaintiff Eric Mays. The judgment appealed from rejected the reconventional demand of the defendant insurer as subrogee for property damages to the automobile. The judgment also rejected the claim of George L. Thomas, owner of the car, who intervened seeking damages for the uninsured portion of the damages to his automobile which was driven by defendant Thomas. The interve-nor appeals the judgment rejecting his claim.

The accident occurred at 11 A.M., January 18, 1976, a clear day in rural DeSoto Parish on U.S. Highway 171, approximately 3 miles north of Grand Cane, Louisiana. The highway runs in a generally north and south direction. The paved portion of the road is 24 feet wide providing north and south bound traffic each with a 12 foot wide lane. The road is straight and relatively level. There is a 6 to 8 foot shoulder located adjacent to the paved portion of the road and the distance between the edge of the paved portion and the fence located on the west side of the road which demarks the west right-of-way line of the highway is 38 feet. The area between the edge of the shoulder and the fence is grassy and contains no ditch and though not completely level, provides a suitable place upon which to ride a horse.

On the morning of the accident plaintiff, Eric Mays, riding his horse, Dusty, and his two young sons, ages 8 and 11, each on horseback, followed by his wife Gloria Mays, in a pick-up truck, entered U.S. Highway 171 on the west side at its intersection with Ranchland Acres Road and turned south and traveled a distance of approximately % of a mile before the accident occurred. Eric Mays and his two sons were riding abreast on the west shoulder of the road. Eric Mays was approximately 3 feet from the edge of the pavement and his two sons were riding to his right. Gloria Mays was driving the truck along the west shoulder of the highway approximately 50 feet to the rear of her husband and two sons, and she had the front and rear emergency blinkers operational on the truck.

They had encountered no traffic on the highway prior to the circumstances surrounding the accident. There were three vehicles parked west of the shoulder of the road in the area of the accident, but the horseback riders had passed them and were approximately 50 feet south of these parked vehicles before the situation occurred which precipitated the accident.

Defendant, William R. Thomas, was operating a 1971 Buick, owned by his father, intervenor George L. Thomas, occupied by five passengers, southerly at a speed of approximately 55 MPH in the southbound lane on U.S. Highway 171 enroute to church in Mansfield. As Thomas approached the Mays family, another southbound automobile pulling a boat on a trailer, traveling in front of the Thomas vehicle, passed the plaintiff Eric Mays. About the time the car and boat reached Eric, the mare, Dusty, which Eric was riding, became excited and Eric lost control of her. The horse backed onto the hard surfaced portion of the southbound lane, requiring the car and boat trailer to pull to the left to avoid colliding with the horse. Thomas observed the horse acting up and backing from the shoulder to the paved portion of the southbound lane and slowed his vehicle. Eric Mays succeeded in getting his horse back onto the shoulder of the road, but he never succeeded in regaining control of her. Thomas observed the horse leave the hard surface of the southbound lane and go to the shoulder after the boat trailer and car pulling it had safely passed. Thomas made no further observation of the horse while it was on the shoulder of the road. He never observed the horse again until the horse reentered the southbound lane the second time, whereupon he applied his brakes, skidded 70 feet down the southbound lane and collided with the horse. The horse had continued to act up for a period of 10 to 15 seconds on the shoulder of the road and then again backed upon the paved portion of the highway, a distance estimated by one witness as 2 feet 7 inches, where she was struck by the right front portion and right windshield of the Thomas Buick. The investigating trooper placed the point of impact at the approximate center of the southbound lane.

At the time of the collision Thomas’ left front wheel was across the center line of the highway. Following the collision, Thomas lost control and the vehicle traveled southeasterly across the northbound lane into a power transmission pole located on the back slope of the ditch on the east side of the highway. The power pole was broken by the impact of the vehicle. Thomas and two of his passengers received minor injuries in the accident. When the horse struck the right front of the Thomas car, Mays was thrown from the horse to the highway and was seriously injured. Because of injuries, the horse was destroyed.

The trial court found the negligence of Thomas in failing to maintain a proper lookout and in operating his vehicle at an excessive rate of speed under the circumstances then existing, was the sole cause of the accident. The trial court found plaintiff, Eric Mays, was free of any negligence.

Appellants assign as error: (1) the trial court’s finding that Thomas was driving at an excessive rate of speed; (2) the trial court’s application of the rules relating to horse-automobile collisions contained in Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (1958) and the trial court’s refusal to apply the rules relating to this type of accident contained in McDonald v. Traylor, 170 So.2d 157 (La.App. 2d Cir. 1964); (3) the trial court’s finding that Eric Mays was not guilty of negligence for failing to yield the right-of-way to the Thomas vehicle and for darting into the path of the vehicle a split second prior to the accident; (4) the trial court’s refusal to apply the statutory rules contained in LSA — R.S. 3:2803 ; LSA-R.S. 3:2802; and LSA-R.S. 3:2851 which prohibit horses from being on public highways.

The issues are: (1) was defendant Thomas guilty of negligence in failing to maintain a proper lookout, traveling at an excessive rate of speed under the circumstances and therefore not maintaining proper control of his car, or was he free from any negligence which contributed to the accident? (2) in the event Thomas is found negligent are plaintiffs barred from recovery because Eric Mays was guilty of contributory negligence in permitting his horse to enter into the path of the Thomas vehicle? (3) in the event Thomas was negligent and Eric Mays was also negligent, are the plaintiffs entitled to recover because Thomas had the last clear chance to avoid the accident? and (4) were plaintiffs entitled to recover for Mrs. Mays’ loss of wages during the period she missed work while looking after her injured husband?

Eric Mays had a right to ride his horse upon U.S. Highway 171. LSA-R.S. 32:22:

Every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and be subject to all of the duties applicable to the driver of a vehicle by this Chapter, except those provisions which by their very nature can have no application.

The right given to the horse rider under this section clearly excludes the applicability of the provisions contained in LSA-R.S. 3:2802; 3:2803 and 3:2851, which are contained in Title 3, Part 6 entitled Stock at Large On Public Highways. It is apparent that the statutes containing the prohibition against horses upon highways of the state are applicable to horses running at large and are not applicable to a mounted horse whose right to be upon the public highway is specifically provided for in LSA-R.S. 32:22.

The defendants contend that the decision of McDonald v. Traylor, supra, required the conclusion that Thomas is not guilty of negligence in the instant case. This decision is inapplicable because at the time the motorist engaged in her passing maneuver and prior thereto, there was no indication to the motorist that the horse which she was attempting to pass, and which suddenly darted in front of her, had prior to that time been out of control.

NEGLIGENCE OF DEFENDANT THOMAS

Our supreme court in the Plauche v. Consolidated Companies, supra, expressly approved the following rules with regard to the duty of a motorist meeting or passing a rider on horseback:

“The rule of conduct now imposed upon a motorist is that he is not required to reduce his speed at all when meeting or passing animal drawn vehicles or mounted horses on the highway unless he observes that the animal or animals are frightened or indicate in some manner that they are disturbed because of his presence. This is to say that a driver must not create any unusual situation, which might cause nervousness or fright in such an animal. At the same time it must be realized that the action of a horse may not always be predicted with certainty. Persons with knowledge of the characteristics and dispositions of horses and who have had experience in handling them, know that regardless of their gentleness they never become absolutely immune from fright. Smith v. Louisiana Power & Light Co., La.App. 1935, 158 So. 844, Joyner v. Williams, La.App.1948, 35 So.2d 812. With reference to the mounted horse and its rider, the duty of a motorist is aptly set forth in 60 C.J.S. verbo Motor Vehicles § 381, p. 935; ‘ * * * He is under a like duty to exercise care with respect to a person riding a horse, and, if he sees or in the exercise of ordinary care should see that the horse is in a fretful and uncontrollable condition, it is his duty to use ordinary care to prevent his vehicle from further frightening the horse or colliding with him, and actually to stop his vehicle rather than to risk the most probable danger of collision by proceeding.’ ” P. 271, 272.

Dusty was a gentle horse and had been ridden by former owners along the Barks-dale flight line, and in congested traffic situations and never evidenced any excitability when subjected to the noise of an airplane or a motor vehicle. The plaintiff, who had only owned the horse five weeks, had never ridden her under circumstances where she was subjected to the noise of traffic. He testified that the horse was gentle and easily controlled. She had been ridden by children with no difficulty. There is no way to determine with absolute certainty what spooked Dusty on the day of her fatal accident, but in all probability, it was the traffic noise created by the approaching and passing of the vehicle towing the boat. Dusty never ceased to be excited nor returned to her prior gentle nature after she first moved onto the paved surface of the road. She thereafter twisted, danced, pranced, backed up and moved suddenly along the shoulder of the road, and Mays never again obtained control of her.

Thomas observed the mare acting up as she first went into the southbound lane and continued to observe her until she returned to the shoulder, after which time he failed to make any further observation of her until she returned to the paved portion of the highway abruptly in front of him. There was no obstruction of Thomas’ vision straight down the highway to the shoulder of the road to which Dusty had returned. If he had continued his observation of her, he would have been aware by her conduct that she was in a “fretful and uncontrollable condition”. Instead of making these observations which he could and should have made, he testified that following the horse’s return to the shoulder of the road, that he accelerated his speed as this was necessary in order for him to pass the horse, which he was aware was to his right, though he made no observation of her. He stated the reason he did not look at the horse was because he contemplated pulling his car into the northbound lane and therefore he was directing his total attention down the highway and to his left. There was no northbound traffic on the highway immediately prior to or at the time of the accident which required his intensive observation to the left and precluded him from observing the entire road ahead.

Defendant Thomas’ complete failure to maintain a proper lookout is further established by his testimony that he never once observed the two Mays children riding their horses beside their father, nor Mrs. Mays traveling 50 feet to the rear with the flashing blinkers in operation upon the rear of her truck.

Ten to fifteen seconds elapsed from the time the horse left the paved roadway and the time she returned. The record does not establish the distance that Thomas was from the Mays procession at the time he made his first observation and slowed his car, but it does establish that he had brought his vehicle under control and slowed it so such an extent that it was necessary for him to accelerate the speed of the vehicle in order to engage in his contemplated passing maneuver.

Thomas, after having first seen the horse and realizing that she was acting up, which realization is established by virtue of the fact that he admitted making a statement to this effect to one of his passengers, was under a duty to “use ordinary care to prevent his vehicle from further frightening the horse or colliding with him and to actually stop his vehicle rather than to risk the more probable danger of collision by proceeding.” Plauche v. Consolidated Companies, supra.

If Thomas had seen what he should have seen, he would not have accelerated the speed of his automobile because of the existing condition and potential hazard that was in existence on the shoulder of the road in front of him. LSA-R.S. 32:64 provides:

No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.

Thomas’ failure to maintain a proper lookout and to operate his vehicle at the speed required by LSA-R.S. 32:64 under the circumstances existing at the time of the accident, constituted negligence that was a proximate cause of the accident.

CONTRIBUTORY NEGLIGENCE

Appellants contend that Eric Mays was guilty of negligence by riding his horse within 3 feet of the paved edge of the highway when there was ample room (38 feet) for him to have ridden the horse a further distance away from the heavily traveled portion of the roadway.

Eric Mays had owned and ridden horses for many years and was thoroughly familiar with their characteristics. The court in Plauche v. Consolidated, supra, made the following observation:

“Persons with knowledge of the characteristics and dispositions of horses and who have had experience in handling them, know that regardless of their gentleness they never become absolutely immune from fright.”

While LSA-R.S. 32:22 gives unto the horserider the right to use the roadways of the state, he is also “subject to all of the duties applicable to the driver of a vehicle”. We construe this to mean that he is required to maintain control of his horse and prevent the horse from suddenly entering into the highway in the direct path of a speeding automobile. While we do not hold that a horserider is required to travel on any particular portion of the roadway or shoulder, we do find that he is required to ride his horse on the road which he is using in a manner to minimize to the maximum extent possible under the existing conditions, the possibility that the horse would become frightened and cause him to lose control of the animal and violate the duties imposed upon him by LSA-R.S. 32:22. This requirement exists even though the horseri-der has a reasonable basis to believe his horse will not become excited and uncontrollable when placed in the immediate vicinity of noisy, fast-moving traffic.

Had Eric Mays ridden his horse a few feet further away from the paved edge of the highway on the more than adequate available area, she may not have been excited by the car pulling the boat and he could have retained control of her. We find Eric Mays was guilty of negligence in riding the horse within 3 feet of the edge of the pavement when he had an area available on which to ride that was 38 feet at its widest point from the edge of the paved portion of the highway.

LAST CLEAR CHANCE

Even though Mays was guilty of contributory negligence, plaintiffs are still entitled to recover from the negligent Thomas and his insurer if Thomas had the last clear chance to avoid the accident. In order for plaintiff Mays to invoke the doctrine of last clear chance, the evidence must show:

“(1) That the plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself; (2) that the defendant actually discovered, or should have discovered, the plaintiff’s peril; and (3) that at the time defendant actually discovered, or should have discovered, plaintiff’s peril, defendant had a reasonable opportunity to avoid the accident.” Ortego v. State Farm Mutual Automobile Ins. Co., 295 So.2d 593, p. 598 (La.App. 3d Cir. 1974).

Once Dusty became excited, fretful and uncontrollable and first entered upon the highway, Eric Mays was never thereafter capable of controlling his horse. He could not direct her movements or her path of travel, and for that reason, he was unable to prevent her from entering the highway directly in the path of the Thomas vehicle. Thomas actually observed the uncontrollable horse at about the time she became excited, and though he failed to observe her continuous out of control condition, there was no obstruction to his vision and he should have seen it. He is considered to have known what he could and should have seen. For this reason, he is considered to be aware of Eric Mays’ continued peril while mounted upon an uncontrollable horse in the immediate proximity of a heavily traveled highway. At the time Thomas discovered Eric Mays’ peril on the back of an acting up horse, he had brought his vehicle under control and he could have retained control of the vehicle by proceeding at a slow rate of speed, stopping if necessary, and avoided the accident. Under these circumstances, Thomas had the last clear chance to avoid the accident and plaintiffs are entitled to recover their damages even though Eric Mays was guilty of contributory negligence. See Handy v. LeJeune, 341 So.2d 1386 (La.App. 3d Cir. 1977).

STRICT LIABILITY OF ANIMAL OWNERS UNDER C.C. Art. 2321

The appellants urge the application of the strict liability rule of Holland v. Buckley, 305 So.2d 113 (La.1974) to the circumstances of this case. We find the decision does not apply to this situation which is governed by a specific provision of the Highway Regulatory Act. LSA — R.S. 32:22. The Holland case dealt with circumstances where the plaintiff was injured by a dog belonging to another and therefore it is totally distinguishable from the claim asserted by Mr. and Mrs. Mays against the operator of an automobile and his insurer. The case is also distinguishable factually from the claims of the plaintiffs in recon-vention because their damages were attributable at least partially to the fault of Thomas, a person other than the owner of the animal, and for this reason their claim would be excluded from the strict liability rule by the very rationale contained in the Holland v. Buckley decision.

DAMAGES

The only element of damages that appellant complains of is an award of $326.40 made for the wages which Mrs. Mays did not earn during the several weeks that she did not go to work because she cared for her injured husband. The plaintiff complains of this award on the following basis, “the record is completely barren of any medical evidence to show that Mr. Mays needed a full time nurse.” The evidence establishes that Mr. Mays sustained, in addition to other injuries, an injury diagnosed as a contusion of the brain and he was in the hospital for approximately 11 days and in the bed at home for some two weeks after he was released from the hospital. Mrs. Mays worked at Western Electric and earned $4.20 per hour for a forty hour week. She did not return to work following the accident, but remained away from her work in order to care for her seriously injured husband. The loss of the wife’s wages under these circumstances has been recognized as a recoverable element of damages. Berry v. Gulf Coast Construction Co., 229 So.2d 368 (La.App. 4th Cir. 1969).

We find that the trial judge did not abuse his much discretion provided for by Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976) in making the award on this element of damages.

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

      . R.S. 3:2803 — “No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of this state:”

      . R.S. 3:2802 — “Livestock means any animal of ■ the species of horses, mules, donkey, cattle, swine, sheep or goat.”

      . R.S. 3:2851 — “It shall not be lawful for horses, mules, donkeys, or asses to go on the paved, black-top and asphalt treated highways of the state system and the rights of way therefor.” (emphasis supplied)

      .The appellants contention that the case is factually totally different from the case here involved is correct. But, the trial court correctly applied the rules of law therein expressed to the facts of this case.

      . C.C. Art. 2321 — “The owner of an animal is answerable for the damage [which] he has caused; * * * ”


author: GARRISON, Judge.

text:
    ARISTOCRAT AIR CONDITIONING AND REFRIGERATION, INC. v. AFFILIATED GROUP ENTERPRISES CORP. et al.
    No. 9511.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Gerald P. Webre, Metairie, for plaintiff-appellant.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

Aristocrat Air Conditioning and Refrigeration Inc. (hereinafter called appellant or “Aristocrat”) filed suit for $29,281 on April 18,1974 against Affiliated Group Enterprises Corporation (hereinafter called “affiliated”) and Lester, Richardson and Company (hereinafter called “Lester”). In a pleading entitled “Petition on Contract”, Aristocrat alleged that during the period of July 24, 1972 through January 11, 1974, it had installed heating and air condition units at an apartment building owned by Lester. Aristocrat alleged that its work was performed pursuant to an installation contract between itself and Affiliated, the general contractor. Attaching a copy of the sued upon contract to its petition, Aristocrat alleged that despite Lester’s and Affiliated’s satisfaction with its work and despite its repeated demands for payment, defendants have failed to pay the balance owed. The attached contract indicates Aristocrat was a subcontractor and Affiliated, the general contractor.

Subsequent to a filing of a motion for extension of time to answer (on May 9, 1974) and an exception of improper service of process (on May 28, 1974), Lester and Affiliated filed an answer on June 13,1974. In their answer, defendants admitted that Lester owned the building upon which Aristocrat performed work pursuant to a contract between Aristocrat and Affiliated but denied that Aristocrat had satisfactorily completed all the work. The defendants averred in their answer that

“the equipment and workmanship furnished by the petitioner is of such a defective nature as to require the defendant to secure the services of a new subcontractor to bring the equipment up to a servicable and useable condition.”

The following chronology of pleadings filed by Aristocrat and judgments rendered by the court led to the rendering of a judgment by default against the defendants:

January 13,1975 Rule to compel answers to interrogatories filed by Aristocrat
January 16,1975 Order of trial court for defendants to show cause at a hearing on February 14, 1975 why they should not be required to answer interrogatories
February 19,1975 Judgment rendered and signed ordering the defendants to answer all interrogatories on or before March 7, 1975. Judgment stated that defendants’ counsel was absent from hearing on rule
March 25,1975 Ex parte motion to strike answer filed by Aristocrat wherein it alleged that defendants had failed to timely answer interrogatories and prayed that defendants’ answer be struck from the record
March 25,1975 Ex parte order signed by trial court striking defendants’ answer from the record
April 16, 1975 Trial court granted Aristocrat’s motion for preliminary default
June 19,1975 Trial court signed judgment confirming default in Aristocrat’s favor and against defendants for $29,281
September 16,1975 Note written by deputy clerk stating: 1) that the case was presented to the court, together with 2 exhibits; 2) that the court was satisfied with the proof of demand; and 3) that plaintiff’s attorney would draw and submit judgment
November 14,1975 Trial court signed judgment confirming Aristocrat’s default and rendering judgment in Aristocrat’s favor for $29,281. The trial court’s judgment additionally recognized a lien that had been filed against Lester in the mortgage office on a certain immovable.

Two exhibits introduced into evidence by Aristocrat are: (1) P-1, an act of sale dated September 19, 1972 wherein Lester purchased the immovable described in the default judgment; and (2) P-2, an affidavit of lien recorded in the mortgage office on February 6, 1974 stating Lester owed Aristocrat $29,681 for work done on property owned by Lester.

The record is devoid of evidence as to the dates of service of process of any of the above pleadings and judgments. The only evidence as to whether service of the petition on the defendants was personal or domiciliary appears in Aristocrat’s motion for preliminary default. Aristocrat stated in its motion for preliminary default that on May 31, 1974 “personal citation” was served on the defendants’ agent for service, John T. Keys.

On March 16, 1976 (approximately four months after the default judgment was granted in Aristocrat’s favor), Francis Cappaert (hereinafter called appellee or “Cappaert”) filed a petition against Aristocrat to annul the default judgment. Lester and Affiliated were not made parties to that suit, and are not parties to this appeal. Suit was filed in the same court that rendered the default judgment. Claiming ownership of the immovable described in the default judgment, and thus an interest in the litigation culminating in the default judgment, Cappaert alleged in his petition: (1) that since the petition filed by Aristocrat in its suit against Lester and Affiliated contained no prayer for recognition of a lien or privilege, the default judgment of November 14, 1975 was not legally obtained and should be annulled insofar as it granted relief not prayed for in the petition; and (2) the default judgment should be annulled because it was obtained by virtue of an order rendered on March 25, 1975 striking the defendants’ answer without hearing, without notice, and without service upon Lester or its counsel. Cappaert contended in Article 8 of his petition to annul the judgment that “[i]n the absence of notice of striking of the answer, the rendition of a default judgment is tantamount to rendition of a default judgment without service of process and should be annulled.” Capp-aert prayed in his petition that the certified copy of the judgment rendered on November 14, 1975 and recorded in the mortgage records of Jefferson Parish be cancelled and erased from the records upon a determination that the judgment is a nullity.

Cappaert introduced no proof whatsoever of ownership of the immovable. In fact, the record is devoid of evidence of how, when, and from whom Cappaert acquired ownership of the immovable.

Aristocrat filed an answer denying all of Cappaert’s allegations except the one alleging the rendition of the default judgment in Aristocrat’s favor on November 14, 1975.

Cappaert then filed a motion for summary judgment annulling the default judgment of November 14, 1975 and ordering the judgment cancelled and erased from the mortgage records of Jefferson Parish. Cappaert filed an affidavit of his counsel with the motion for summary judgment wherein his counsel swore that he found, after diligent search, no notice of filing of suit by Aristocrat in the Jefferson Parish mortgage records. Also filed by Cappaert is a memorandum in support of the motion for summary judgment.

Aristocrat filed an exception of no cause or right of action wherein it alleged that proper service was rendered on Lester and that Cappaert has no legal standing to institute the suit because he was not an indispensable party to the suit filed by Aristocrat. Aristocrat further contended in its exception that the demand for the nullity of a judgment by rule to show cause constitutes an unauthorized use of the summary proceeding. The trial court rendered a judgment on November 7, 1977 granting Cappaert’s motion for summary judgment, and declaring that the judgment rendered on November 14, 1975 in Aristocrat’s favor, recognizing a lien on a certain immovable, was a nullity. The trial court’s judgment ordered that the inscription of the judgment appearing in the mortgage records of Jefferson Parish be cancelled and erased. The judgment contained a description of the immovable and referred to Cappaert as an “intervenor.”

Aristocrat has appealed. Cappaert (ap-pellee) has neither appealed nor answered appellant’s appeal. No brief has been filed by appellee.

A number of possible issues for discussion or debate are raised by the facts of this case. However, it is not necessary for us to address ourselves to them. We conclude that the trial court erred in granting appellee’s (Cappaert’s) motion for a summary judgment. A summary judgment is only applicable where there is no showing of a genuine issue of material fact. La.C.C.P. 966. In this case there is clear indication of the existence of such an unresolved issue— if not of a number of them.

The mover for a summary judgment has the burden of proving that there is no genuine issue of material fact. Andrew Dev. Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Magie v. Patio Motel, Inc., 301 So.2d 381 (La.App. 4th Cir. 1974). Any doubt as to the existence of material issues of fact must be resolved against the granting of a summary judgment, and in favor of a trial on the merits to resolve disputed facts. Andrew Dev. Corp., supra; Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir. 1976). Summary judgments should be granted sparingly (Magie v. Patio Motel Inc., supra) and never substituted for a trial on the merits. Savoy v. Action Products Company, Inc., 324 So.2d 921 (La.App. 3rd Cir. 1975).

For the foregoing reasons, the judgment in favor of appellee is annulled. The case is remanded to the District Court for further proceedings consistent with law and this opinion.

ANNULLED AND REMANDED.

      . Included in this list is a notice by the deputy clerk.

      . The description of the immovable in the trial the immovable in the default judgment. court’s judgment matches the description of


author: SAMUEL, Judge.

text:
    Honorable Ernest N. MORIAL, Mayor of the City of New Orleans and Honorable Joseph I. Giarrusso, Councilman-At-Large and President of the Council of the City of New Orleans v. Honorable William J. GUSTE, Jr., Attorney General of the State of Louisiana, and Honorable Harry Connick, District Attorney For the Parish of Orleans.
    No. 9690.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writs Refused Dec. 14, 1978.

      Donald A. Hoffman, City Atty. and David A. Marcello, New Orleans, for plaintiffs-appellees.
    William F. Wessel, New Orleans, for Harry Connick, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., and Ronald C. Davis, Staff Atty., New Orleans, for Honorable William J. Guste, Jr., defendant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

This suit for declaratory relief was filed by Ernest N. Morial, Mayor of the City of New Orleans, and Joseph I. Giarrusso, Councilman at Large and President of the New Orleans City Council, seeking determination of the status, as against the Louisiana Public Meetings Law, of a proposed informal meeting between the Mayor and other members of his staff and any City Council members who chose to attend. Plaintiffs allege the meeting was called by the Mayor for the purpose of reporting to the City Council members on the status of the city’s executive branch and to inform them of “matters planned by Mayor Morial and falling within the mandated Charter responsibilities of the Executive Branch of [the city] government.”

On the theory that they are responsible for enforcing the Public Meetings Law, the petition names the Louisiana Attorney General and the District Attorney for the Parish of Orleans as defendants. The District Attorney filed an exception of no cause of action and a motion for summary judgment. The Attorney General filed an exception of no cause of action based on the contention that the petition sought advisory relief only and did not set forth a justiciable controversy sufficient to serve as a foundation for a declaratory judgment.

The trial judge rendered judgment: (1) maintaining the Attorney General’s exception and dismissing him from the proceeding as an improper party in the absence of an attack on the constitutionality of the statute; (2) dismissing the District Attorney’s exception and motion; and (3) declaring the proposed meeting, as set forth in the pleadings and the evidence, valid and not in violation of the Public Meetings Law without being open to the public because it was called by the Mayor, who is not a “public body” under the statute. The District Attorney has appealed.

The terms of the proposed meeting were stipulated by the parties as follows: Letters were sent from the Mayor to members of the City Council inviting them to meet with him, the City’s Chief Administrative Officer and members of his executive staff on June 16, 1978. The meeting was called by the Mayor for the purpose of reporting to members of the Council on past and planned activities of his office. It was called at the Mayor’s initiative without prior consultation with the councilmen of the time, place, or subject matter of the meeting. Attendance at the meeting by members of the council was purely voluntary, and there was no intention by the Mayor to officially convene the council pursuant to his powers under the City Charter. Mayor Morial would testify that no agenda for the meeting had been formulated or distributed, no votes of any kind were to be taken, no decisions were to be made and no binding commitments were to be exacted. Mayor Morial specifically stated the meeting would not be open to the public.

That portion of the judgment which grants declaratory relief basically follows these stipulations. It reads:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a Declaratory Judgment issue herein declaring that the meeting called by the HONORABLE ERNEST N. MORIAL, Mayor of the City of New Orleans, to be held at 1:00 P.M. on June 16th, 1978, may be held without being open to attendance by the public, provided that the said meeting is held for the sole purpose of discussing matters of mutual interest and concern to those present, forming part of the Legislative and Executive branches of City government, and provided that such information is given to those present without any decisions being made, requested or required, and no commitments of any kind are exacted of those present; and no votes (‘straw’ or otherwise) are taken, recorded or unrecorded.”

The specific statutory language upon which petitioners request declaratory relief is R.S. 42:5. That portion of the statute reads:

“For the purposes of R.S. 42:4.1 through R.S. 42:10, ‘meeting’ means the official convening of town and city councils, police juries and other governing bodies; school boards and boards of levee and port commissioners; boards of publicly operated utilities; and all state, parish, or municipal boards or authorities with policy making or administrative functions which receive or expend tax funds, the legislature specifically exempted, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Such meetings shall be open to the public.
‘Administrative conference’ or ‘administrative session’ means any assembly of a quorum of a public body listed in the definitions of ‘meeting’ above, other than a regular, special, or rescheduled meeting, held by that body for the purpose of discussing matters on which definitive action can be taken or advice officially determined, by the public body but only at a regular, special, or rescheduled meeting. A function solely of a social nature is not an administrative conference.”

The petitioners only pray for a declaratory judgment determining the legal status of Mayor Morial’s proposed meeting in light of R.S. 42:5. They make no request for a declaration of the statute’s unconstitutionality, nor do they seek injunctive relief. However, they allege the statute is so vague that neither they nor the members of the City Council can meet and know in advance whether the proposed meeting will be in violation of the Public Meetings Law, subjecting them to the criminal penalties established in R.S. 42:9, i.. e., upon first conviction, a fine of not less than $100 and not more than $1,000 or imprisonment for not more than seven days and, upon any subsequent conviction, a fine of not less than $250 and not more than $2,000 or imprisonment for not more than thirty days, or both. Under R.S. 42:10A, the District Attorney is required to enforce the provisions of the Public Meetings Law. As such, petitioners contend the statute deprives them of their rights of due process, free speech and association under both federal and state constitutions.

In this court appellant makes no complaint regarding the merits of the trial court’s decision, that the action proposed by plaintiffs is not prohibited by the Louisiana Public Meetings Law. Therefore, that issue is not before us. Appellant’s argument and brief are concerned only with the issue of whether the court committed error in failing to dismiss the suit as to him by either maintaining his exception of no cause of action or granting his motion for summary judgment. He argues the exception should have been maintained or the motion granted because: (1) a declaratory judgment shall not issue where the decree will not terminate the uncertainty or controversy giving rise to the proceeding; (2) a declaratory judgment shall not issue except in a justiciable controversy; (3) a declaratory judgment shall not be rendered to decide future rights in anticipation of an event which may never take place; and (4) a declaratory judgment should not issue where the court would be powerless to enforce its decree and the Civil District Court for the Parish of Orleans does not have the authority to enjoin the District Attorney from prosecuting.

Regarding appellant’s arguments, the pertinent articles of the Louisiana Code of Civil Procedure provide:

“Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.” LSA-C.C.P. Art. 1871.
“A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” LSA-C.C.P. Art. 1872.
“The enumeration of Articles 1872 through 1874 does not limit or restrict the exercise of the general powers conferred in Article 1871 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.” LSA-C.C.P. Art. 1875.
“The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.” LSA-C.C.P. Art. 1876.
“Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.” LSA-C.C.P. Art. 1878.

The answer to appellant’s first argument is contained in Code of Civil Procedure Article 1876, which clearly states the trial judge “may” refuse to render a declaratory judgment which, if rendered, would not “terminate the uncertainty or, contro--, versy giving rise to the proceeding.” The use of the verb “may” makes the rendition of such a judgment permissive within the sound discretion of the trial court. We understand Article 1876 to mean the trial court must render a declaratory judgment when such a judgment would terminate the uncertainty or controversy giving rise to the proceeding but, within his sound discretion, he may choose or refuse to render a declaratory judgment which would not terminate such uncertainty. The trial court’s wide discretion in giving or refusing declaratory relief is recognized in the jurisprudence.

Appellant’s second argument is answered by a reading of the Public Meetings Law and its numerous ambiguities. Many of its provisions are so vague they do not lead to ascertainable interpretations. The penalties provided by R.S. 42:9 are criminal in nature and subject a person violating this law to criminal sanctions.

Further, Article 1, § 13, of the Louisiana Constitution of 1974 provides an accused shall be informed of the nature and cause of the accusation against him. However, Article 12, § 3 of the Constitution of 1974 provides that no person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law. This conflict is further compounded by R.S. 42:4.1 which, in setting forth the policy of the Public Meetings Law, mandates “the provisions of R.S. 42:4.1 through R.S. 42:10, shall be construed liberally”.

Given this conflict between statutory and constitutional provisions, and given the criminal consequences which flow from acts in violation of the Public Meetings Law, appellant’s contention that no justiciable controversy exists pales into insignificance. This situation is covered by LSA-C.C.P. Art. 1872, quoted above, which authorizes declaratory relief for a “person interested . whose rights . . . are affected by a statute . . . ” This article authorizes such person to “have determined any question of construction arising under the . . . statute . . ” The plaintiffs are clearly interested parties (on pain of jail sentence), and their rights to freedom of speech, etc., are directly affected by the Public Meetings Law. In this connection, we are mindful of what has been said by the Supreme Court concerning the question of what is a “justiciable controversy”. In Abbott v. Parker, the Supreme Court said:

“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Here, public officials are concerned about the proper performance of the duties of their office, and this is more than an advisory opinion. The meeting has been called, and a serious question exists as to whether the holding of the meeting will be in violation of the Public Meetings Law, thus subjecting the plaintiffs or either of them to a criminal prosecution. In our view, there is an existing actual and substantial dispute which meets the criteria contained in the above quotation from Abbott. There is a justiciable controversy here.

Appellant’s third argument is that declaratory relief is not available to decide 'future rights in situations which may never take place. This argument lacks merit for the same basic reason set forth in answer to his second argument. We point out, in addition, the purpose of the declaratory judgment articles in the Code of Civil Procedure is to provide a remedy for one contemplating action which may result in criminal or civil sanctions and avoid acting at his own risk in areas where his rights are not clear. Since one purpose of declaratory judgments is to clarify the legal significance of actions before they take place, appellant’s third argument is without merit.

Finally, appellant contends declaratory relief is inappropriate in this case because the Civil District Court for the Parish of Orleans would be without jurisdiction to enforce any judgment it rendered, and specifically could' not enjoin the District Attorney from prosecuting plaintiffs if the District Attorney determined the actions approved by the court were in violation of the Public Meetings Law. The argument is in conflict with a line of Louisiana jurisprudence and is without merit.

In City of New Orleans v. Borey, this court granted a request for a declaratory judgment maintaining the constitutionality of Act 94 of 1950 which provided criminal penalties against any officer of a municipality who refused to parole a person upon request of an elected official given the parole power under that statute. In maintaining the jurisdiction of the Civil District Court to grant declaratory relief under a criminal statute, we made the following statements:

“We cannot agree with our learned brother below that no jurisdiction vested in him. True, § 2 of Act No. 94 of 1950 provides severe penalties against any officer of any municipality who shall refuse to parole any person upon the request of an elected official endowed with the power to parole under the provisions of the act. However, the mere fact of the presence of § 2 does not inhibit the Civil District Court for the Parish of Orleans from adjudicating the case. Although a statute or an ordinance contains penal provisions for violations of the terms thereof, a civil court is not necessarily divested of authority to enjoin the enforcement or test the constitutionality of the enactment. There are many laws, purely civil in their nature, which provide for penalties, e. g., the income tax law, the zoning law, and the various acts regulating the pursuit of trades, occupations, and businesses, and the licensing of persons engaging therein. The test is, if the statute complained of is injurious to property interests or civil rights, one affected may enjoin its enforcement.” (Emphasis ours).

Other cases have relied on City of New Orleans v. Liberty Shop, and it is established that the Civil District Court has jurisdiction to grant declaratory and injunctive relief in situations involving criminal statutes if such statutes are injurious to civil or property rights.

In this case, the Public Meetings Law directly affects plaintiffs’ civil rights of freedom of speech and of assembly, and the Civil District Court consequently has jurisdiction to grant declaratory relief under its provisions. Moreover, the Civil District Court has jurisdiction to enforce the rights declared by it under the authority of Article 1878 of the Code of Civil Procedure, quoted above.

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

AFFIRMED.

      . LSA-R.S. 42:4.1-10.

      . Section 3-107(5).

      . LSA-C.C.P. Art. 5053.

      . Superior Oil Company v. Reily, 234 La. 621, , 100 So.2d 888; State v. Board of Supervisors, Etc., 228 La. 951, 84 So.2d 597; Gary v. Marquette Cas. Co., La.App., 72 So.2d 619.

      . 259 La. 279, 249 So.2d 908, 918.

      . La.App., 52 So.2d 728.

      . 157 La. 26, 101 So. 798; City of New Orleans v. Belas, 235 La. 867, 106 So.2d 291; City of New Orleans v. Lafon, La.App., 61 So.2d 270. Cf. Connick v. Lucky Pierre’s, La., 331 So.2d 431.