author: BEER, Judge.

text:
    GARDEN HILL LAND CORPORATION v. Succession of Edwin CAMBRE et al.
    No. 8676.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearings Denied Feb. 14, 1978.
    Writs Refused March 27, 1978.

      D. A. McGovern, III, New Orleans, for plaintiff-appellant.
    James R. Pertuit, New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and BOWES, JJ.
   BEER, Judge.

Kenneth V. Ward seeks to recover attorney’s fees allegedly due under a 50% contingent fee contact or, alternatively, to recover in quantum meruit for services rendered in representing the minor daughter of Mrs. Cambre, Renette Maria Cambre, in the succession of her grandfather, Edwin Cambre, Sr.

Ward, by intervention, asserts his attorney’s privilege (La.R.S. 9:5001) on certain property known as Woodland Plantation in which the succession of Edwin Cambre, Sr. had an ownership interest and which was the subject of partition proceedings. Re-nette Maria Cambre had been placed in possession of an undivided one-third of the succession property plus an additional ten acres of a tract known as St. John Plaza. Against these assets, Ward asserted a 50% claim.

The lengthy history which gave rise to this claim was summarized by the Louisiana Supreme Court, in Garden Hill Land Corp. v. Succ. of Cambre, 306 So.2d 718 (La.1975).

In his intervention, Ward sought to recover under the terms of his contract with Renette Maria Cambre. The district court recognized his claim and granted him a privilege on 50% of the proceeds realized from sale of the property to be partitioned. Thereafter, on devolutive appeal to this court, the contingent fee contract was held invalid, but Ward’s right to seek reasonable attorney’s fees was reserved.

The Supreme Court granted writs, and, in Garden Hill Land Corp. v. Succ. of Edwin Cambre, supra, we were reversed and the case remanded to the district court with the following instructions:

“Normally we would be inclined to hold that plaintiff, having failed to make out his case, is limited to the relief that the Court of Appeal afforded him, that is, a claim for reasonable compensation for his services to the minor, to be proven in the court entertaining the tutorship proceeding.
Because of extenuating circumstances, however, we feel that fairness and justice would better be served if plaintiff in intervention were allowed to try to prove that his 50% contingency fee contract, as and when executed on March 10, 1971, was reasonable. Should he fail on remand to satisfy the court that his 50% contingency fee contract was reasonable and thus legally binding, taking into account among other things the risk of non-recovery, the amount of legal work, the size of the minor’s estate, and the anticipated delay in receipt of his fee, he should be able to establish the amount he is due as reasonable compensation for his services, possibly under amended pleadings seeking alternative relief in the District Court on remand, or, independently of these proceedings, in the tutorship in the same district court.
Relative to the $6,022.05, which the attorney has already received in the district court in these partition proceedings pending appeal; since he may yet prove that he has a recoverable claim for legal services in these proceedings we are not inclined to act prematurely concerning Mr. Ward’s receipt of this money, a fact which incidentally forms no part of the record before us.
Accordingly, the judgment of the Court of Appeal reversing the trial court judgment and invalidating intervenor’s attorney fee contract is reversed. The case is remanded to the District Court for reconsideration of the validity of the attorney fee contract (for a determination as to whether the prescribed fee is reasonable and the contract accordingly legal) and for such other matters as may properly be brought before the trial court.
The fixing of costs for this appeal is reserved until this case is concluded.” Id., at 723, 724.

On remand to the district court, Ward filed an amended petition, which:

a. alleged further facts in support of reasonableness of the contract;
b. joined the minor who had become a major as a defendant in intervention; and
c. pled in the alternative that fee for legal services from June 27, 1971 through August 2, 1972, date of Ward’s dismissal as attorney, be set on a quantum meruit basis.

Cambre answered the amended petition and also filed a motion styled “Motion for Restitution on a Vacated Judgment,” seeking restitution of the $6,022.05 awarded Ward as well as restitution of an additional $24,750.00 awarded him later but still based upon the original recognition of his 50% contract.

After a hearing on remand, the district court held the 50% contingent fee unreasonable, and awarded $8,000.00 attorney's fees for services rendered Renette Maria Cam-bre up until August 2, 1972.

From that judgment, Ward has suspen-sively appealed, seeking recognition of the reasonableness of his contingent fee contract. Appellee Renette Maria Cambre has answered the appeal, seeking restitution of $30,772.05 (the sum total of the $6,022.05 plus the $24,750.00 noted above).

Prior to trial on remand, appellee filed a peremptory exception of prescription to appellant’s claim in quantum meruit. The quantum meruit claim was made by amendment to the original petition and was filed on March 13, 1975. Because the applicable prescriptive period set forth in La.Civ.Code art. 3538 is three years, appellee contends that the March 13,1975 filing of the amended petition presenting a quantum meruit claim was too late, and the claim was prescribed.

It is further argued that amendment of the petition did not relate back under La.C. C.P. art. 1153, because it is alleged, the quantum meruit claim is a separate cause of action from the original contract claim.

In considering this argument, the initial determination to be made is whether the prescriptive period for Ward’s fee claim did indeed commence on the date of rendition of judgment of possession on January 18, 1972, or if it commenced on the date Ward was dismissed by Mrs. Cambre, August 2, 1972 (which is within three years of filing of the amended petition).

The employment contract, regardless of its validity, is instructive in determining the intent of the parties with regard to the point at which attorney’s fees would be due and exigible. By their employment contract, Mrs. Venita Cambre and Ward agreed:

“MRS. VENITA CAMBRE hereby employs KENNETH V. WARD as her attorney to compromise, or otherwise collect by suit, all claims of the minor, RE-NETTE MARIA CAMBRE, in the succession of her grandfather, Succession of Edward Cambre, Sr. Probate Docket No. 638, Twenty-Ninth Judicial District Court, Parish of St. John, Louisiana.
The said KENNETH V. WARD accepts said employment, and in consideration of his services rendered and to be rendered MRS. VENITA CAMBRE, as tutrix of the minor, RENETTE MARIA CAMBRE, hereby agrees to pay him fifty (50) per cent of the amount received by the minor, RENETTE MARIA CAMBRE, in the above succession proceedings whether the minor’s claim is compromised or settled by legal proceedings. (Emphasis added.)”

From the agreement, it appears that more than an adjudication of ownership, but rather a collection of the minor’s property, was contemplated.

By order of the district court (through which the parties sought approval of the contract), Ward was to receive his fee “after such interest is reduced to cash.” This indicates to us that liquidation (or, stated another way, reduction to cash) of the minor’s interest was contemplated as the “bottom line” service to be rendered by Ward.

Cambre’s able counsel cites Looney v. Levy, 35 La.Ann. 1012, 1015 (1883), in which the Supreme Court said that an attorney’s fees “are due and exigible at the termination of each litigation.” But it is noted that Looney did not involve a suit for recovery of a contingency fee, but rather a suit on an account for annual retainer fees. Looney cited Morgan v. Brown, 12 La.Ann. 159 (1857), the facts of which more closely resemble those of the instant case. In Morgan, the assignee of an attorney sought to recover a contingent fee due the latter. In dismissing a plea of prescription, the court remarked, “. . .As the stipulated reward for the services was contingent on the success of Brown in collecting the money, the fees were not exigible until the money was collected.” Id., at 159. Thus, if Looney is interpreted in the light of the Morgan holding, the termination of litigation in a contingency case is collection of the judgment.

Similarly, in Shepherd v. Dickson, 38 La.Ann. 741 (1886), a plea of prescription was interposed when an attorney sought to recover a contingent fee for service in a suit for damages. Judgment in the latter suit was rendered in 1881; plaintiff’s interest was not collected until 1883 and 1884. The court dismissed the prescription plea, stating, “The fee was not exigible until these collections were made. . . .” Id., at 744.

Again, in Lyons v. Hall, 90 So.2d 519, 522 (La.App.2nd Cir. 1956), the rule regarding commencement of prescription on a contingency fee was stated, as follows:

“Prescription in actions of lawyers for their fees does not commence to run until their services cease. Hyams & Jonas v. Rogers, 24 La.Ann. 230. Prescription in an action for an attorney’s fee, contingent upon the collection of a judgment obtained by him, begins to run not from the judgment but from the collection of the money under it. Morgan v. Brown, 12 La.Ann. 159.”

Appellee attempts to circumvent the application of this rule to the instant case by advancing the argument that “. we need not be concerned about the collection on the judgment in the instant case because the client, Renette Maria Cambre, was vested with ownership of the property rights involved in the Succession (sic) at the time the Judgment of Possession was signed on January 18, 1972.” This argument is not persuasive. The issue at hand is when the interest of the attorney in the contingency fee had sufficiently accrued so that it had become due and exigible. To determine this, one must look to the intentions of the parties and the court decree which clearly indicate that the attorney’s claim would become due upon reduction of the judgment to cash. The point at which the client’s interest in the property was legally adjudicated to her is irrelevant to the determination of when the attorney’s interest became actionable, and hence commenced running of the prescriptive period.

Had Ward’s services not been abruptly terminated by his dismissal, prescription on his claim would have commenced upon liquidation of Renette Maria Cambre’s interest in the succession. Because of Ward’s dismissal before liquidation of that interest, prescription began to run on the date of his dismissal: August 2, 1972. Ward’s claim in quantum meruit is timely.

A consideration of whether a quantum meruit claim is a separate cause of action becomes irrelevant. As noted in Tate, “Amendment of Pleadings in Louisiana,” 43 Tul.L.Rev. 211, 232 (1969):

“. . .Of course when relation back is not at issue, the circumstance that an amendment asserts a claim independent of that originally alleged is not material, for then the only question in allowing it is whether the just and expeditious disposition of the litigation is advanced by so doing. (Footnote omitted.)”

We turn to a consideration of the trial court’s holding that the 50% contingent fee contract was unreasonable, and that a quantum meruit award of $8,000.00 was all that was justified.

Ward, through able counsel, contends that the trial court has not properly considered the undisputed facts of this case. It is argued that Ward was the only one of Cambre’s several attorneys who was able to secure the extra ten acre allocation steadfastly sought by her. Also, it is argued that by his efforts in securing bidders for the tract which was to be partitioned, Ward increased the minor’s estate from the $47,-000 to $112,000.

The record confirms that Ward served Mrs. Cambre and Renette Maria Cambre well. Ward’s testimony at trial (especially Vol. 2, pp. 71-95), and his sworn affidavit detailing actions taken by him on behalf of the minor reflect that he had numerous conferences and phone calls with Mrs. Cam-bre and other counsel involved in the matter in order to bring about a final settlement of the estate. Testimony of witness Remy Gross, II, attorney for the Cambre succession, indicates that the other heirs were in a posture to settle immediately before Ward entered the case as counsel, suggesting that Ward’s ability to settle the case and acquire an extra ten acres for the minor was merely a matter of fortuitous timing. However, this suggestion is contradicted by testimony of Mr. Carol B. Hart, attorney for the other two heirs. Hart stated that he felt the compromise offer proposed by Ward in March, 1971, was too generous to Ward’s client. It was not until after further negotiations that a compromise was reached in June, 1971.

In addition to bringing about a favorable settlement for the minor, Ward was instrumental in ironing out details of the final compromise which was entered into in January, 1972.

On the other hand, as Judge Bradley indicates in written reasons, the court’s authorization of the contingent fee contract always contemplated a “reasonable” fee. He indicates that the provisions of the agreement were considered by the court as “restrictions, not provisions for payment, nor contracts for such amounts.” While we would be hard put to make such an interpretation of the terms of the employment agreement, there is nothing in the record before us to indicate that the scope of Judge Bradley’s scrutiny of the matter at the remanded proceedings failed in any way to consider the guidelines generally set out by the Supreme Court which include risk of non-recovery, amount of work, size of the estate, etc. (all as specifically noted in that portion of the opinion earlier referred to). Accordingly, in our view, the trial court’s conclusions with respect to the particular finding of “reasonableness,” or lack thereof, falls into that category of finding on the part of a trial court which should be given great weight. Stated another way, we feel that such a finding should not be the basis for a substitution of our opinion for that of the trial judge absent a clear showing of a breach of discretion on his part. We find no such breach. Nor do we find ourselves in such disagreement with the trial judge’s conclusion as to feel compelled to substitute our determination of “reasonableness” for the determination that he has painstakingly made.

Even so, we are obliged to disagree with the amount which the able trial judge awards in quantum meruit. In this connection, we have carefully reexamined the essentially uncontroverted evidence regarding Ward’s successful' professional efforts in Cambre’s behalf, taking into account every factual aspect that we consider material in the complex matter of seeking to set an attorney’s fee under the circumstances here existent. In doing so, we have tried to guide ourselves along the lines generally discussed by the Supreme Court in Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), and Coco v. Winston, 341 So.2d 332 (La.1976). Proceeding accordingly, we conclude that no less than $16,000 is appropriate. (Parenthetically, we make the following observation for a reviewing court: Were we actually setting the fee instead of reviewing one already set in the trial court, we would have set the fee in the twenty thousand dollar range.)

Pending devolutive appeal of the original district court judgment granting Ward a lien on 50% of the minor’s interest in Woodland Plantation, a total of $30,772.05 has been paid out to Ward in the course of various partition proceedings.

Now that 50% contingent fee contract has been invalidated by the trial court and that part of the trial court’s judgment affirmed by us, appellee may very well be entitled to recover the entire difference between $30,-772.05 and the amount of attorney’s fees awarded in this decree ($16,000.00).

In that respect, we find no difficulty in recognizing appellee’s right to such restitution even though the issue was raised by motion rather than by petition.

However, there may be other factors which require trial court consideration before the restitution issue is fully and finally resolved. Though we find that the record contains clear proof of the payment of a total of $30,772.05 to Ward and though we believe that the interests of judicial economy would favor a final resolution of this lengthy litigation by the ordering of restitution at this time, we feel compelled, in an abundance of caution, to remand this matter to the trial court for final adjudication of the restitution issue.

Accordingly, it is ordered, adjudged and decreed that the fee of Kenneth V. Ward for representation of Kenette Maria Cam-bre in the Succession of Edwin Cambre, Sr. be and, the same is hereby fixed in the amount of $16,000.00. The entire matter is, herewith, remanded to the 29th Judicial District Court in order that a final judgment may be confected by that court, taking into account our judgment with respect to attorney’s fees for services rendered by Ward to Renette Maria Cambre in the Succession of Cambre and our judgment with respect to the proof of payment of $30,-772.05 to Kenneth V. Ward. The 29th Judicial District Court may, in its discretion, authorize further proceedings relative to Ward’s claim (if any he has) for attorney’s fees other than those covered in this opinion and may, thereafter, render a final judgment designating a net amount due from Cambre to Ward or Ward to Cambre, as the case may be. The parties to this litigation are to bear their own costs in both the trial court and in this court.

AMENDED, RECAST AND REMANDED.

      . During the litigation, Renette Maria Cambre became a major, and was substituted as defendant-in-intervention.

      . Art. 1153: “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

      . The proposed compromise offered in the alternative 10 extra acres for the minor, or double their value. After Ward secured the favorable appraisal of $50,000 for the ten acres, it became apparent that the succession could not pay this amount in cash, and a compromise had to be made.

      . Such as, for example, the question of Ward’s right to additional attorney’s fees for other services rendered.


source: Caselaw Access Project

author: BEER, Judge. GULOTTA, Judge,

license: Public Domain

text:
    Cleo Allen BUTLER, Individually, and Cleo Allen Butler, for and on behalf of her minor daughter, Michelle Butler v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY, Dr. Jerome Medley and Dr. Warren P. McKenna, Jr.
    No. 8739.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.

      Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., John M. Sartin, Jr., Adams & Reese, Lawrence L. McNamara, Robert J. Conrad, Jr., New Orleans, for defendants-appellees.
    Donald B. Ensenat, Asst. Atty. Gen., Sanders, Downing, Kean & Cazedessus, John V. Parker, Stewart M. Thomas, Baton Rouge, amicus curiae for defendants-appel-lees.
    Before GULOTTA, BEER and BOWES, JJ.
   BEER, Judge.

Plaintiff, Cleo Allen Butler, individually and on behalf of her minor child, Michelle Butler, sued Flint-Goodridge Hospital of Dillard University, Dr. Jerome Medley and Dr. Warren P. McKenna, Jr., seeking to recover damages in the total amount of four million dollars allegedly resulting from defendants’ negligence and malpractice.

Defendants, relying upon R.S. 40:1299.47 B (Act 817 of 1975), separately filed dilato-, ry exceptions of prematurity, contending that no such claim against “health care providers” may be commenced in a Louisiana court unless first submitted to a “medical review panel.”

On September 24, 1976, the district court maintained the exception filed in behalf of Flint-Goodridge Hospital and dismissed plaintiff’s suit against that institution. On March 25,1977, the exceptions of prematurity filed in behalf of Drs. Medley and McKenna were also maintained and plaintiff’s suit against them was dismissed.

With all defendants thus discharged, plaintiff sought and obtained an order for a suspensive appeal under date of April 14, 1977, returnable to this court on June 8, 1977.

On May 3,1977, Drs. Medley and McKen-na moved this court to dismiss the appeal on grounds discussed in our written denial of that motion dated June 7, 1977.

On June 23, 1977, counsel for plaintiff joined with the Attorney General in moving this court to make the Attorney General a party to this action. That motion was discussed and denied by our written order of June 30, 1977.

On December 8, 1977, the matter came before us for appellate review of the trial court’s action in maintaining the exceptions of prematurity and was following extensive and able oral argument, submitted for adjudication.

By informal letter dated December 13, 1977, to all counsel of record (including those who had sought and been granted permission to file amicus briefs), we noted the pendency of Everett v. Goldman, et al., 351 So.2d 1209 (No. 60,959 on the docket of the Supreme Court of Louisiana), and called attention to the fact that same was set for argument before that court some time within the next few weeks. We took the somewhat unusual step of soliciting counsel’s response to our tentative view that we should defer ruling in this matter, awaiting the Supreme Court’s apparently controlling decision in Everett v. Goldman, et al., supra.

Those responses and our own independent consideration of the matter prompted us to conclude that we should, without further delay, address the single major issue which we deem to be properly before us: The constitutionality, vel non, of the statutory procedure requiring prior submission of medical malpractice claims to a medical review panel as provided in LSA-R.S. 40:1299.47 B.

Under the circumstances, we also will resolve the less critical issue: Is Flint-Goo-dridge excluded from the provisions of the statute here involved on the thesis that the term “hospital” does not include hospital or care facilities maintained by a university or college?

Medical review panels have been described as devices intended to reduce the number of medical negligence claims that go through the expensive and time-consuming process of extensive preparation and lengthy trial.

The section of the statute which provides for the medical review panel requires that medical malpractice claims against “health care providers” must be presented to and passed upon by a medical review panel before a judicial action may be commenced. The panel is comprised of three physicians and an attorney who serves as an advisory chairman without vote. Within five days of receipt of the proposed complaint, the insurance commissioner is obliged to acknowledge filing and advise the claimant of defendant’s status under the act and provide all defendants a copy of the complaint. One physician is selected by the plaintiff, and within ten days another by defendant. The third is agreed upon by the two physicians selected or by lot if no agreement can be reached. The attorney selection process is commenced by the clerk of the Supreme Court, who draws five names from a list of attorneys who reside in a parish which would be proper venue for the action in a judicial proceeding. If an attorney cannot be agreed upon by the parties, four of the five names are alternately stricken by the parties from the list.

Each panel member is required to take an oath to discharge his duties in an unbiased and faithful manner and to render a decision in accordance with the law and the evidence.

The panel is required to review the evidence submitted in accordance with the procedural aspects of the statute. After the record is complete, either party may convene the panel to question its members concerning any matter relevant to the issues to be decided by it prior to the issuance of its report. Finally, the panel is directed by statute to express an expert opinion as to whether the evidence presented to it supports the conclusion that the defendant health care provider acted or failed to act within the appropriate standards of care charged by the complaint. The opinion of the panel is limited to a statement as to whether the evidence supports the conclusion that the defendant failed to comply with the applicable standard of care or that there exists a material issue of fact bearing on liability suitable for consideration by the court which does not require expert opinion. When negligence is found, the panel is further required to state its conclusion on causation and the nature and extent of the complainant’s disability or impairment.

The statute in question does not, by use of the medical review panel, deprive a litigant of his right to a trial by jury. Nothing in the statute denies or attempts to foreclose such a procedural right, and the prerequisite of submission of the matter to the medical review panel in no way infringes upon that right.

LSA-R.S. 40:1299.47 H specifically provides that any opinion rendered by the medical review panel shall not be conclusive. Hence, neither party is judicially bound by its opinion and the judge or jury is free to render a decision contrary to the panel’s finding should the facts developed at the trial of the case ‘(of which they are the sole arbiters) warrant such contrary conclusion. An additional safeguard is provided by allowing the members of the panel to be called as witnesses in a subsequent judicial proceeding, thereby assuring a litigant the right to demonstrate the basis for the panel’s opinion and to expose any impropriety which may have formed part of the opinion reaching process.

Numerous state and federal statutes providing for administrative tribunals exercising quasi-judicial functions have generally been considered constitutionally sufficient as long as judicial review is available at some reasonable point. Here, however, the medical review panel is only empowered by statute to render an expert opinion, and even that opinion may be vigorously questioned and, in fact, impeached in a subsequent unlimited judicial proceeding. Accordingly, we cannot conclude that the acknowledged added step which the statute does clearly require has such drastic due process effect as to nullify or materially impede or impair the basic rights of any litigant.

Turning to the issue of special law versus general law, we find that the basic distinction has been carefully defined by the Supreme Court in Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179, 183 (La.1975):

“General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons.”

It is here that we perceive the real battle lines have been drawn and it is this area which causes us the greatest concern, for, unless it can be convincingly demonstrated that the provisions of the act stem from a keen legislative regard for the health, safety and welfare of the citizens of this state, the classification of “health care providers” is, on its face, a “suspect” classification affecting only a certain “chosen” few.

We address this issue searchingly, aware, as we must be, that virtually all legislation is, at the bottom line, a reaction to either a fancied or a valid public need. Only by attempting to make the finite determinations of how much of the public is really in need of legislative response to their dilemma and how much the public will be protected thereby can a court hope to chart the thin line which attempts to isolate and subordinate special interest, stimulate and protect the public interest, while also delicately balancing the charting within a constitutional framework.

It is manifest that a legislatively acknowledged situation having the potential effect of drastically proscribing the delivery of medical services to the general public demands legislative intervention and the seeking of a remedy. We have clearly progressed to the point where our citizens are entitled to such legislative stewardship as may be necessary to assure them that reasonable and proper medical services will be available at nonprohibitive costs. In its wisdom, the legislature of this state has perceived that such services will, more likely than not, be disrupted or curtailed without an appropriate statutory response to the impasse that has been created by the so-called medical malpractice explosion or medical malpractice crisis.

That such crisis does, indeed, exist is, we believe, peculiarly within the legislature’s ability to determine. They have spoken, and there is nothing before us which signals so vast an incorrectness or capriciousness of such determination as to compel the substitution of our views for theirs. It is of little importance for us to parenthetically observe that the existence of the crisis (assuming that one does, indeed, exist) may well stem, at least in part, from failings within the judicial process itself. It is important that we now exercise great care in our consideration of the constitutional attack so ably mounted by plaintiff’s counsel.

The statute under attack may not be the best nor the most workable solution to the acknowledged problem. What is significant is the acknowledgement of the existence of a public problem and the validity of the legislative effort to respond in a manner consistent with the public interest.

We are not delighted by the prospect of unusual procedures or unusual protections being accorded to any specified group, be they health care providers or not. Though many who fall within this definition have provided exemplary services to the community, there are others who have not and who, indeed, impose upon the public good will in annoying, overbearing and, at times, even dangerous ways, harboring the view that they, themselves, rather than the service which they provide, are something special in the mainstream of community life. Those so-called health care providers make it even more difficult for legislatures (and courts) to take the steps which recognize, distinguish, and, in perhaps marginally constitutional ways,' seek to preserve and protect the vital and unique functions performed by health care providers.

Yet, in the final analysis, the overall salutary and at times quite marvelous effect that health care providers bring to the mainstream of American life requires that, when needed, an extra step of protection be granted to ensure its continuity. That is what the legislature, in its wisdom, has sought to provide by R.S. 40:1299.47 and what, in our view, is here entitled to judicial protection. The statute seeks to perform the delicate and compellingly necessary job of balancing the equities so that the end result is one of public advancement and public protection.

Finally, plaintiff argues that Flint-Goodridge Hospital of Dillard University does not fall within the purview of the medical malpractice statute, referring to R.S. 40:2102 which defines hospital for licensing purposes and simply exempts hospitals operated by colleges and universities from certain licensing requirements established for private hospitals. Nothing in the malpractice statute with which we are here concerned prohibits such hospitals from applying to the insurance commissioner for coverage and otherwise complying with its provisions; and there is nothing in this record, in the briefs filed or in the oral arguments presented which constitutes any valid basis upon which we should deny Flint-Goodridge the protection otherwise afforded by the statute.

The judgment of the district court is affirmed. All parties to this appeal will bear their own costs.

AFFIRMED.

GULOTTA, J., concurs.

GULOTTA, Judge,

concurring.

We are confronted, in this appeal, solely with the question of an exception of prematurity. In this connection, I concur with the view expressed by the majority that the statute which requires review by a medical review panel is constitutional. Because we answer only that question, I am of the opinion that the real “bone of contention”, i. e., the limitation of liability in the sum of $500,000.00 in a medical malpractice case, has neither been reached nOr considered by the majority opinion.

Although not passed upon by the majority, I have serious concern whether the $500,000.00 limit of liability provision violates LSA-Const.1974, Art. 3, § 12(A)(7) relating to prohibited special legislation. See Martin v. Louisiana Stadium and Exposition District, 349 So.2d 349 (La.App. 4th Cir. 1977).

Assuming that my interpretation of the holding of the majority is correct, I concur with the result.

      . Drs. Medley and McKenna had, in due course, submitted evidence of their coverage under the statute in question, annexing to their exception certification that they were qualified and enrolled health care providers as defined by R.S. 40:1299.41 A (1) and R.S. 40:1299.42 A.

      . We are now advised that the case will be argued before the Supreme Court of Louisiana during the first week of March, 1978.

      . See Note, Recent Medical Malpractice Legislation — First Checkup, 50 Tul.L.Rev. 655 (1976).

      . R.S. 40:1299.47.

      . R.S. 40:1299.47 B.

      . R.S. 40:1299.47 C.

      . R.S. 40:1299.47 A (1) and (2). This section so provides by amendment by Act 143 of 1977.

      . R.S. 40:1299.47 C (2) and (6).

      . R.S. 40:1299.47 A (3) and R.S. 40:1299.47 C, both as amended by Act 143 of 1977.

      . R.S. 40:1299.47 C (8).

      . R.S. 40:1299.47 E.

      . R.S. 40:1299.47 G.

      . R.S. 40:1299.47 G.

      . R.S. 40:1299.47 G (4).


author: GARSAUD, Judge.

text:
    PHILIP QUAGLINO TOBACCO CO., INC. v. Patricia A. Fenerty, wife of/and Robert ANDRAS.
    No. 8457.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Joseph S. Russo, Jefferson, for plaintiff - appellant.
    Livingston & Powers, Rhett M. Powers, New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This is an appeal from a decision of the district court denying plaintiff attorney’s fees on a promissory note. The only issue is whether defendants are liable for 25% attorney’s fees provided for in the promissory note sued on.

The defendants/appellees were makers of a note in the amount of $1,717.00, dated January 22, 1966, payable ten years from date, at 5% interest payable annually. The note contained the following statement regarding attorney’s fees:

“In case this note should be placed in the hands of an attorney, after its maturity, to institute legal proceedings to recover the amount hereof, or any part hereof, in principal or interest, or to protect the interests of the holder hereof, or in case the same should be placed in the hands of an attorney for collection, compromise or other action, the maker and indorser binds himself to pay the fees of the attorney who may be employed for that purpose, which fees are hereby fixed at twenty-five per cent on the amount due or sued for, or claimed or sought to be protected, preserved or enforced.”

It also contained the usual waiver of presentment for payment, notice of nonpayment and protest. Apparently the defendant Robert Andras signed the note for the benefit of his father who, the defendant testified, was “close” to one Phil Gardner, the Secretary-Treasurer of Philip Quaglino Tobacco Co., Inc. (Tr. p. 7). This fact was never contradicted. Over the ten year period the interest installments were paid but many only after the due date. (Tr. pp. 11, 14 and 18). On none of these earlier occasions was there any mention that the plaintiff would file suit if the interest wasn’t paid timely. (Tr. pp. 14, 18, 19). The note was not paid on January 22, 1976 when it became due.

Three considerations are significant in resolving this matter. The first is the lack of any evidence showing that the plaintiff changed its policy of indulgence regarding the defendant’s prior late payments. Allegedly one Joe Quaglino called the defendant during the month of January regarding payment but he was not called to testify. The unexplained failure to call this witness must be construed against plaintiff. Moore v. Skidmore, 301 So.2d 428 (La. App. 4th Cir. 1974). The debtor here is justified then in believing that absolute punctuality will not be required. Under such circumstances the creditor cannot exact a penalty (e. g. attorney’s fees) for delinquency without first providing adequate notice of his intention to require strict compliance in the future. Guttuso v. Jax Federal Credit Union, 270 So.2d 326 (La. App. 4th Cir. 1972); Emblem, Inc. v. Picolo, 123 So.2d 799 (La. App. 4th Cir. 1960).

Secondly, it appears from the record that proper tender of payment was made before the matter was turned over to an attorney for collection. On February 27, 1976 Robert Andras accompanied by his attorney went to the place of business of Philip Quaglino Tobacco Co., the payee of the note, to pay the note if so advised by his attorney. The purpose of having the attorney present was to get an opinion on his liability as defendant had not seen the note since he signed it ten years prior. The attorney, by affidavit filed in the record swore that “Robert Andras had with him that day the funds to pay said balance and was under his attorney’s advise [sic] to do so if the note read as he remembered it, since he did not have a copy.” (Affidavit of Rhett M. Powers of October 15, 1976 filed in Record # 8457). None of the parties who were acting on behalf of plaintiff, however, were present. Under those circumstances, the defendant did not make payment. At this point the attorney left his professional card and asked that one of the parties call him. Plaintiff’s witness denied being advised of this visit. (Tr. p. 10). Under these circumstances it was not unreasonable for the trial court to have concluded that the defendant was ready, willing and able to pay before an attorney was retained by plaintiff thus denying the plaintiff’s claim for attorney’s fees. In the absence of manifest error we are bound by these findings. Canter v. Koebring, 283 So.2d 716 (La.1973) and Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).

Finally, plaintiff argued that as a demand letter was sent to defendant by plaintiff’s attorney sometime after failure of payment at maturity attorney fees would obtain in his favor under the terms of the note. A copy of such a letter addressed to Mr. & Mrs. Robert Andras is in the record but is surrounded by much confusion. Plaintiff’s attorney admits that the date of the letter, January 25, 1976 is incorrect as the letter was not written at that early date after maturity. He believes that it was written on February 25, 1976. Mr. Andras denies receiving the letter. The affidavit of defendant’s attorney however indicates that a demand letter was received after the visit to the office of Philip Quaglino Tobacco Co., Inc. on February 27,1976. Again, it was not unreasonable for the trial court to believe under these circumstances that the demand letter was received after the valid tender of payment. He thus denied attorney’s fees, which we conclude was not manifest error. Canter and Dyson, supra.

The judgment is affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Hollis F. WILSON, Defendant-Appellant.
    No. 13423.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.

      Patrick H. Wright, Jr., Monroe, for defendant-appellant.
    State of Louisiana by John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Defendant appeals from. his being adjudged an habitual offender under the Motor Vehicle Habitual Offender Law (R.S. 32:1471-1481).' We affirm.

Proceedings under this law are civil. State v. Williams, 332 So.2d 432 (La.1976); State v. Love, 312 So.2d 675 (La. App. 2d Cir. 1975). This law authorizes its own procedure, summary in nature, under § 1475, which reads in part:

“Upon the filing of the petition, the criminal district court shall enter an order incorporating by attachment the aforesaid abstract and directed to the person named therein to appear in court within ten days and show cause why he should not be barred from operating a motor vehicle on the highways of this state. A copy of the petition, the show cause order and the abstract shall be served upon the person named therein in the manner prescribed by law for the service of process . . ."

The record shows domiciliary service on defendant and his presence in court with an attorney when the proceedings were conducted. C.C.P. Art. 2593 required no answer of defendant but his personal appearance constitutes a general appearance under C.C.P. Arts. 7, 925.

The law contemplates that the State shall furnish an abstract of the conviction record of the defendant to the district attorney who is required to file the petition under the law. § 1473. The abstract “shall be competent evidence that the person named therein was duly convicted.” The abstract is attached and served with the petition and order on the defendant as above stated. § 1475. It is axiomatic that a defendant can be adjudged an habitual offender by default where service is made and the abstract presented and defendant has not appeared. Defendant complains here that the State did nothing more than introduce the abstract of the conviction record.

The law was enacted to provide an expedient procedure at minimum expense and trouble whereby the State would deter habitual offenders from using its highways. § 1471. Where the defendant who is served with the petition contends that, although of the same name as the person contained in the abstract, he is not the same person who was convicted of any offense shown in the abstract, section 1476 provides alternative methods for the court to determine the issue. These methods certainly should not be held exclusive and we hold this section applies to the situation where the defendant contends he is not the same person named in the abstract. In the absence of such a showing or contention by the defendant, the court' is empowered to find a person of the same name as in the abstract, who is served as the law requires, to be an habitual offender as was done here. Due process, however minimal, was met. We note that the last address of the person shown in the abstract (Warren Drive, West Monroe) was the same address at which defendant was served by domiciliary service.

Defendant’s other complaints (1) that the certification of the abstract by the deputy custodian of records of the particular agency was without a seal and (2) that the district judge who conducted the proceedings had been assigned to the criminal division of the district court, are also found without merit. The fact that there was no seal impressed upon an instrument by a notary did not affect the validity or admissibility of a notarial act. Fleming v. Richardson & Smith, 13 La.Ann. 414 (1858). Outside Orleans, district judges are empowered to conduct alternatively civil as well as criminal proceedings. State v. Skyeagle, 345 So.2d 189 (La.App. 3rd Cir. 1977).

At appellant’s cost, judgment is

AFFIRMED.

      . “The matter shall be heard by the court without a jury. If such person denies that he was convicted of any offense shown in the abstract and necessary for a holding that he is an habitual offender, and if the court cannot, on the evidence available to it, determine the issue, the court may require of the department of public safety certified copies of such records respecting the matter as it may have in its possession. If, upon an examination of such records, the court is still unable to make such determination it shall certify the decision of such issue to the court in which such conviction was reportedly made. The court to which such certification is made shall forthwith conduct a hearing to determine such issue and send a certified copy of its final order determining such issue to the court in which the petition was filed. The court in its discretion, may rely on certified copies of convictions adjudged by courts outside of this state, or federal courts, or may request such a court to make a determination.”


author: BOLIN, Judge,

text:
    Levi ROBERSON, Plaintiff-Appellant, v. J. B. REESE, Defendant-Appellee.
    No. 13426.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Barham, Adkins & Coleman by Ronald G. Coleman, Ruston, for plaintiff-appellant.
    Waltman, Napper & Madden by R. H. Madden, III, Ruston, for defendant-appel-lee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge,

Plaintiff, alleging his land was enclosed, petitioned the court to establish judicially his right of passage across defendant’s property to the nearest public road. Defendant’s exception of no cause of action was sustained, plaintiff’s suit was ordered dismissed, and he appeals. We agree the exception should have been sustained, but we grant plaintiff an opportunity to amend his petition.

The landowner whose estate is enclosed and who has no way to a public road may claim a right of passage over the estate of his neighbor to the nearest highway. Louisiana Civil Code Article 699.

Although plaintiff has alleged his land is enclosed, he fails to plead he has no way to a public road. Rather, his petition shows he and his ancestors in title have used an existing road across defendant’s property for a period in excess of 70 years. As defendant pointed out in his exception of no cause of action, plaintiff has not alleged his use of this road has been interfered with or in any way abrogated.

The trial court in written reasons for judgment upheld the exception relying on Pittman v. Marshall, 104 So.2d 230 (La.App. 2d Cir., 1958). In Pittman the court, faced with facts similar to those before us, stated:

The conclusion is inescapable there is now in existence, available to plaintiff and for his use, a right of passage over and across defendant’s property to the highway, access to which is sought by plaintiff. This way of passage has existed for many years and was extensively used by not only plaintiff but his predecessors. Therefore, LSA-C.C. Art. 699 is without application under the language of the article giving it effect to an owner whose estate is enclosed but “who has no way to a public road.” .

We agree with the trial court that plaintiff’s petition fails to state a cause of action under the rationale of Pittman. This conclusion is strengthened by the decision in the earlier case of Robinson v. Herring, 20 So.2d 801 (La.App. 2d Cir., 1944) which held, in the context of a similar factual situation, that an exception of no cause of action should have been sustained. In construing La.C.C. Art. 699, the court said:

The provisions of this article may only be availed of, as appears therefrom, when the enclosed owner has no way to a public road. Unless such owner finds himself in this predicament, of course, he has no right to invoke the aid of a court to adjudge to him a servitude of passage to a highway over intervening lands. (Emphasis added)

We find the exception of no cause of action was properly sustained. However, in plaintiff’s brief he states that the point of this entire case is that defendant has prohibited plaintiff from improving the dirt road which has deteriorated and become impassable. Thus it is apparent that the grounds of the objection pleaded by the peremptory exception could be removed by amending the petition. The judgment sustaining the exception failed to allow plaintiff a time within which to amend his petition in order to supply the omissions, as required by Louisiana Code of Civil Procedure Article 934:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. (Emphasis added)

Notwithstanding plaintiff’s failure to avail himself of his opportunity to amend his petition in order to supply the deficiency, we choose to follow the mandate of La.C.C.P. Art. 934 under the particular facts of this case.

Accordingly, the judgment is amended to grant appellant fifteen days from the finality of this judgment within which to amend his petition, failing which the dismissal of the suit shall become final. In all other respects the judgment is affirmed at appellant’s cost.


author: PRICE, Judge.

text:
    Joe T. REEVES, III, d/b/a Reeves Ford Tractor & Implement Company, Plaintiff-Appellee, v. ENTERPRISE PRODUCTS COMPANY, Defendant-Appellant.
    No. 13428.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Goode, Goode & Overdyke by J. Philip Goode, Shreveport, for defendant-appellant.
    Goff, Caskey, Butler & Davis by H. Russell Davis, Arcadia, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Enterprise Products Company has appealed the judgment rendered against it in favor of Joe T. Reeves, d/b/a Reeves Ford Tractor & Implement Company, for the sales price ($8,840) of a used Ford 4500 backhoe and tractor.

Enterprise is a corporation engaged in transporting, storage, and selling liquefied petroleum products.

In August 1976 the manager of its Arcadia, Louisiana terminal, T. J. Smith, was advised by a company official of the home office in Houston that the Arcadia terminal should purchase a used backhoe to save costs of renting equipment. Smith inquired if Reeves had a used backhoe and informed Reeves the company would spend approximately $8,500 for a good used machine. Either on this occasion, or in a subsequent conversation a short time later, Reeves informed Smith he had acquired a used machine in Lake Charles which he would sell to Enterprise for $8,500.

As a result of the negotiations described above between Smith and Reeves, the equipment was hauled from Lake Charles to Arcadia by Reeves, and some reconditioning work was performed on the equipment by Reeves’ employees. It was then delivered to the defendant’s plant and unloaded in the presence of Smith. On either the same day or the succeeding day an employee of Reeves delivered a sales invoice to the terminal office.

A dispute developed as to whether a binding agreement of sale had been consummated, and Enterprise refused to pay for the machine. Thereafter this suit was filed by Reeves to recover the purchase price of the alleged sale.

In defense of the action Enterprise contends: (1) that in Smith’s negotiations with Reeves there was no unconditional agreement to purchase the backhoe without an opportunity to view and test the machine; (2) that should it be found Smith had made an agreement of sale, he had no authority to bind defendant, Enterprise; (3) that should a sale with authority be found, then defendant is entitled to a rescission of the sale because of redhibitory vices in the equipment.

The trial court found Smith had agreed to a contract of sale and had apparent authority to bind his employer. The court further found there was insufficient proof to support defendant’s claim of a redhibito-ry vice. We affirm the trial court’s judgment based on these factual findings.

The issue of whether a sale was in fact consummated revolves around the conflicting testimony of Smith and plaintiff concerning whether Smith told plaintiff Enterprise would take the machine on being informed by plaintiff that he had found a good used backhoe in Lake Charles and that he would make any necessary repairs. If Smith did so inform plaintiff, then the requisites for a valid sale under La.C.C. Art. 2439 have been met. Proper resolution of conflicting testimony is determined by weighing the credibility of the witnesses, a task best borne by the trial judge, who in this case ruled in favor of plaintiff.

Although defendant correctly contends that a sale of a movable for more than $500 must be proved by one credible witness, citing C.C. Art. 2277, a party to the suit can serve as the credible witness. Bice v. Southside Motors, Inc., 344 So.2d 78 (La. App. 2d Cir. 1977).

Defendants’ second contention is that even if a sale was consummated, Smith did not have the authority to unconditionally accept the tractor, and therefore, defendant cannot be found liable as a principal. Plaintiff contends that even if Smith lacked actual authority, defendant placed Smith in a position to cause plaintiff to reasonably believe he was acting on behalf of defendant with proper authority, and defendant should be bound under the doctrine of apparent authority. The concept of apparent authority is derived from common law origin. See 8 LLR 409, 33 LLR 735. The term has been defined in the common law as “conduct by the principal which causes a third party reasonably to believe that a particular person, who may or may not be the principal’s agent, has authority to enter into negotiations or to make representations as his agent.” W. Seavy, Law of Agency § 8(D) (1964). In the facts before us defendant put Smith in the position of terminal manager granting him the authority to hire, fire, and control the terminal at his own discretion.

The vice-president of Enterprise admitted in his testimony Smith was instructed to negotiate for a used backhoe for the company. Reeves testified Smith told him he had been authorized to spend up to $8,500 for this equipment. Reeves had performed wrecker services for transport trucks for Enterprise at the request of Smith in past years and had always been paid by defendant. No purchase orders were issued in any of the past transactions. Under the circumstances presented Reeves could reasonably believe Smith had authority to act on behalf of defendant in the purchase of this movable equipment.

Defendant’s third contention is its alternative plea that if a sale was consummated, it should be rescinded because of defects which render the backhoe unsuitable for its intended purpose. Approximately a week after the backhoe was delivered, plaintiff’s operator, Bobby Gene Raburn, started the machine and attempted to raise the front end loader when the hydraulic hose burst. Defendant admits, however, that the bursting of a hydraulic hose is not unusual, and further concedes that the hose was replaced by plaintiff the following day. The other testimony by Raburn concerning the unsuitability of the machine details the alleged worn condition of pins, teeth, and bushings discovered on his visual inspection. Raburn admits, however, that the backhoe was never operated or tested in the manner for which it was intended to be used. The gist of Raburn’s testimony is that the machine had been used extensively and showed evidence that it had a limited period of satisfactory use remaining. Defendant offered no expert testimony to corroborate Raburn’s opinion of the condition of the machine. The trial judge found defendant did not carry the burden of proving the unsuitability of the backhoe for its intended use. As the backhoe was known to be a used machine, defendant cannot expect parts to be in new condition or the operational lifetime to be unlimited. The expectations for a used machine are commensurate with its quality and nature. Therefore, we find no error in the trial judge’s conclusion that defendant has not proven a redhibitory vice in the machine.

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


text:
    M. B. DUPREE, Plaintiff-Appellant, v. RELCO EXPLORATION CO., INC., et al., Defendants-Appellees.
    No. 13432.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Bethard & Davis, by Henry W. Bethard, III, James G. Bethard, Coushatta, for plaintiff-appellant.
    Sholars, Gunby, Allbritton & Hayden, by Clifford L. Lawrence, Jr., Monroe, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is a suit by M. B. Dupree against James T. Walker and Releo Exploration Company, Inc., to partially cancel an oil, gas, and mineral lease for the alleged failure of defendants to adequately develop the leased property. From the judgment rejecting plaintiff’s demands, plaintiff appealed. We affirm.

The facts are as follows: On August 20, 1971, Dupree granted an oil, gas, and mineral lease to Walker covering 485 acres in Red River Parish. The lease had a primary term of five years. On August 28, 1971, Walker assigned a three-fourths interest in the lease to Releo. In January 1973, defendants drilled a well on the leased property to test the Rodessa formation which proved to be a “dry hole.” After that well was drilled, Lyons Petroleum, Inc., who was leasing other adjacent land from Dupree, completed a producing gas well in the Rodessa zone at 5,260 feet in September 1974. Lyons actually drilled to 10,280 feet and found no other commercial shows below the Rodessa. The conservation department thereafter established drilling units of 640 acres for this field, and eighty acres of the land leased to defendants by plaintiff were included in the unit on which the Lyons well was producing. Defendants participated in the cost of the drilling of the Lyons well in the proportion that the eighty acres of the subject lease had to the total unit acreage, and royalty has been paid to plaintiff applicable to the eighty acres since 1974 amounting to $8,846.55. In January 1976, defendants drilled an offset well on that part of the leased tract lying outside the Lyons-Dupree unit. This well was drilled to a depth to test all known producing zones in the area, and as no commercial production was attained, it was abandoned in August 1976. Suit was filed in January 1977 by plaintiff alleging that defendants’ lease should be cancelled except as to the eighty acres included in the producing conservation unit. Plaintiff contends the primary term of the lease expired in August 1976, and since no development has occurred thereafter, the defendants have breached their obligation to properly develop the lease.

Plaintiff relies on the decision of this court in Nunley v. Shell Oil Company, 76 So.2d 111 (La.App. 2d Cir. 1954), in which we held that a lessee who refused to develop the portion of the lease acreage not in a producing unit, should have his lease can-celled as to that part. The facts and circumstances of Nunley are distinguishable from the instant case. Here the original lessee, Walker, a petroleum engineer, testified that all possible efforts had been made to secure production from the known producing zones and any further efforts to obtain production through the Rodessa zone would not be feasible. However, he further testified that studies were being made with the view of drilling a deeper test well at 13,000 feet if information being gathered from a deep test planned by Lyons Petroleum some two and one-half miles away is favorable. In Nunley the lessee offered no hope to the lessor for future development by the drilling of deeper zones.

Article 122 of the Louisiana Mineral Code, La.R.S. 31:122, defines the duty of the lessee as follows:

A mineral lessee is not under a fiduciary obligation to' his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

The lease in the instant case contains no stipulation prescribing the specific conduct necessary to comply with the obligation on the part of the lessee to be a reasonably prudent operator.

In view of the defendants’ prior efforts to obtain production from the leased acreage at all known producing zones in the area, and their continuing efforts to gather geological information to determine the feasibility of a deep test (13,000 feet) in the reasonably near future, we find defendants have been in good faith in developing the lease as reasonably prudent operators. See also Saulters v. Sklar, 158 So.2d 460 (La.App. 2d Cir. 1963).

For the foregoing reasons, the judgment rejecting plaintiff’s demands is affirmed. Costs of this appeal are assessed to appellant.


text:
    Max C. WHITE, Plaintiff-Appellee, v. EXXON CORPORATION et al., Defendants-Appellants.
    No. 13439.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    McKeithen, Burns & Lewellyan by Ronald L. Lewellyan, Columbia, for plaintiff-appellee.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellants John Myers Pump Service, Inc. and The Aetna Cas. & Sur. Co.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, Jr., Monroe, for defendant-appellants Bo Equipment & Supply Co., Inc. and Ins. Co. of North America.
    Davenport, Files, Kelly & Marsh by Mack J. Marsh, Monroe, for defendant-appellant Exxon Corp.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This action arises out of an explosion of a gasoline pump occurring on October 7,1975, at White’s Grocery in Franklin Parish. The owner, Max C. White, filed suit against Exxon Corporation, Bo Equipment and Supply Co., Inc., John Myers Pump Service, Inc., and Aetna Casualty & Surety Company for property damage and loss of business income alleging that the explosion was caused by the negligent installation and maintenance of the pump.

John Myers Pump Service, Inc., and its insurer, Aetna, have appealed from the judgment of the trial court rendered in plaintiff’s favor which annulled a prior judgment of the court which had sustained a motion for summary judgment filed by these two defendants. We affirm for the reasons discussed hereafter.

The issue on appeal is whether the circumstances under which the summary judgment was rendered constitute “ill practices” to justify the annulment of the judgment under La.C.C.P. Art. 2004.

Plaintiff contends the judgment was obtained through ill practices based on the following chronology of events: Prior to the filing of the motion for summary judgment, a co-defendant, Bo Equipment, answered written interrogatories submitted to all defendants containing an inquiry as to who installed “the pump.” Bo Equipment promptly responded by admitting it had made the installation. John Myers and Aetna immediately filed their motion for summary judgment alleging there was no genuine issue of fact in so far as plaintiff’s action against them was concerned as Bo Equipment had admitted installing the defective pump, and as reflected by an attached affidavit of John Myers’ president, Jerry Wolff, no installation or service had been undertaken by it on the defective pump. The other co-defendant, Exxon, had not answered plaintiff’s interrogatories at this time.

No contradictory affidavit was filed by plaintiff, and the motion was therefore granted by the trial court dismissing the action against John Myers and Aetna.

Shortly thereafter, Exxon filed answers to plaintiff’s interrogatories in which it declared John Myers had installed the pump which had exploded. Bo Equipment then filed an amended answer to the interrogatories which declared it was confused as to which pump the interrogatory had referred, and denied it had installed the pump in question.

In his action to annul the summary judgment, plaintiff contends that the affidavit of John Myers’ president, Wolff, on which the court partially relied in granting the motion, was false in that Wolff asserted positively that he had examined the company records, and that from that examination and of his own personal knowledge, his company had not installed the pump in question. Plaintiff further contends that the effect of this affidavit when considered with the erroneous answer to the interrogatories by Bo Equipment, precluded plaintiff from obtaining accurate information as to which party was responsible for the negligent installation, and misled the court to conclude there was no genuine issue of fact which resulted in the sustaining of the motion for summary judgment. Plaintiff contends these circumstances warrant the finding of “ill practices” as provided by Art. 2004.

John Myers and Aetna contend that plaintiff’s remedy should have been by a timely appeal from the summary judgment, and that he should not be allowed to maintain an action of nullity based on defenses which should have been urged at the time of the hearing on the motion for summary judgment.

The record convinces us that plaintiff was misled into believing that there was no doubt as to who installed the pump, and that he had no reason to believe that this would later become a disputed fact until it was too late to file a counter affidavit or to appeal from the judgment.

On trial of the proceeding to annul it was shown that Wolff, although probably acting in good faith, did make an affidavit asserting as a positive fact that the pump in question was not installed by his company. It was further shown that this information was probably incorrect. Exxon produced invoices issued by John Myers showing the probability that such work was performed by them in 1970.

Wolff admitted in his testimony that his affidavit made in 1976 was based solely on his examination of available company records which did not show the 1970 invoices as no records are kept by the firm for more than five years.

The issue is whether the foregoing circumstances constitute “ill practices” within the meaning of C.C.P. Art. 2004 which provides:

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

Appropriate to the question here at issue is the discussion of the definition of an ill practice by the appellate court in Succession of Trouard, 281 So.2d 863 (La.App. 3rd Cir. 1973) as follows:

We agree with plaintiffs that the trial court has much discretion in determining whether a judgment should be annulled because of fraud or ill practices. Muller v. Michel Lecler, Inc., 266 So.2d 916 (La.App. 4th Cir. 1972). A judgment may be annulled on the ground of “ill practices,” even though no actual fraud or intentional wrong has been committed in the procurement of the judgment, if it is shown that the enforcement of the judgment would be unconscionable and inequitable and would deprive the litigant who seeks the annulment of legal rights to which he is entitled, [cites omitted]

The affidavit purportedly based on personal knowledge, when actually based on the absence of appropriate records, was improper and under the circumstances here presented has contributed to an inequitable result. It, therefore, should be considered an ill practice within the meaning of C.C.P. Art. 2004 entitling plaintiff to annul the summary judgment.

The judgment appealed is affirmed at appellant’s cost.


author: BOLIN, Judge.

text:
    Bennie L. WALTERS, Plaintiff-Appellant, v. SENTRY INSURANCE COMPANY, Spainhour’s, Inc., and William “Red” Moore, Defendants-Appellees.
    No. 13440.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.

      Weiner, Weiss, Madison & Howell by James R. Madison, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

The issue is whether nor not plaintiff alleged sufficient facts to show defendant employee was acting within the course and scope of his employment as a store clerk when he struck plaintiff customer with an ax handle in the store. The trial court sustained an exception of no cause of action filed by the employer and its insurer and dismissed plaintiff’s suit against these parties. We reverse and remand.

Plaintiff alleged that he, his wife, and his minor child entered defendant’s hardware store to shop for a particular tool. Plaintiff’s wife found the tool, asked defendant employee its price, and informed him she considered the quoted price too high. While plaintiff’s wife was returning the-merchandise to the display rack, the employee began verbally abusing plaintiff and came from behind the store counter and struck plaintiff on the head with an ax handle.

The particular circumstances of each case will determine whether the employee’s conduct is within or without the course and scope of his employment. Miller v. Keating, 349 So.2d 265 (La.1977). The dispute which erupts into violence must be either employment rooted or reasonably incidental to the performance of the employee’s duties. LeBrane v. Lewis, 292 So.2d 216 (La.1974); Jefferson v. Rose Oil Company of Dixie, 232 So.2d 895 (La.App. 2d Cir., 1970).

In Jefferson a service station employee shot a customer in the leg during an altercation over the payment of 82 cents worth of gasoline which the customer had pumped into his vehicle’s fuel tank. We found the transaction between the employee and the customer was incidental to the business which the employee was authorized to perform and held the employer vicariously liable.

Plaintiff’s allegations here show the battery may have been incidental to a business contact between customer and employee; the store clerk was required to answer a customer’s questions about the price of merchandise. If the evidence shows the battery arose out of a purely personal matter between plaintiff and the employee, the employer would not be vicariously liable. See LeBrane, supra. However, the question of the employer’s ultimate liability is not now before us. In maintaining plaintiff’s petition when we can reasonably do so, we afford the plaintiff an opportunity to present evidence to prove the employer’s liability. See Haskins v. Clary, 346 So.2d 193 (La.1977).

The judgment is reversed, the exception of no cause of action is overruled, and the case is remanded for further proceedings. Appellees are assessed with the costs of this appeal and all other costs are to await the final determination of this cause.


text:
    Carl Charles FIRMIN et al., Plaintiffs-Appellees, v. David Thomas FRANTOM et al., Defendants-Appellants.
    No. 13451.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for defendants-appellants.
    Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is an action for a reduction in the sales price of a residence because of a defective foundation. Two issues are presented on appeal: (1) Whether depreciation damage beyond the costs of repair can be assessed against a good faith seller in an action for quanti minoris, and (2) Whether a third party defendant is an indispensable party.

The pertinent facts are: Arnold Construction Corporation, the third party defendant in this case, constructed a house in Shreveport and sold it to Mr. and Mrs. Kenneth Talley in 1971. In 1972, after the Talleys complained that they discovered the slab of the house was cracked, Arnold repurchased the residence from them. In 1973, Arnold sold the house to defendants, David and Catherine Frantom. Defendants sold the house in 1975 to plaintiffs, Carl and Judy Firmin, for $13,000 cash and the assumption of a $22,691.22 mortgage. Plaintiffs thereafter learned that the slab was cracked and sued defendants for a reduction of $12,500 in the purchase price.

Defendants in their answer made Arnold Construction Corporation a third party defendant as their warrantor for any liability incurred by them. Arnold Construction Corporation filed a peremptory exception to the third party demand based on prescription. The trial of the exception was continued by agreement of counsel to a date two weeks beyond the trial on the main demand, and thereafter, continued again indefinitely-

After trial on the merits of the principal action the court found defendants liable, but limited their liability to that of a good faith seller because they were unaware of the defect. The trial court awarded plaintiffs $8,981 for estimated cost of repairs and $3,212.25 for depreciation in market value of the home because it has experienced such a defect in the foundation.

Defendants’ initial argument is that the trial court’s finding that they were in good faith precludes the award to plaintiffs of loss in market value as this is in the nature of damages which can only be assessed against a bad faith seller under La. C.C. Art. 2545. Defendants are incorrect in • their assumption that the $3,212.25 allowed for market depreciation constitutes an award of damages and is precluded under C.C. Art. 2545 because of defendants’ good faith. The Supreme Court has declared that a determination of diminution in an action of quanti minoris involving realty is not easily ascertainable and several factors should be considered in the computation, such as the market price of the realty at a subsequent sale, any added improvements, increases in market prices, depreciation due to use, or any other factors causing a change in the property’s worth. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959). Recovery has been allowed against a good faith seller for depreciation in addition to the costs of repair. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974), writ refused 303 So.2d 186 (La.1974). In Menville, the court concluded that the cost of repair is not necessarily the sole measure of diminution value, and the fact must be taken into account that a reasonable buyer who is forewarned of the defects and subsequent repair may still offer a lower bid than for a similar object which has had no repair. In Menville, the court held that even though the defects were repaired, a forewarned buyer would have purchased the object only after a 20 percent reduction in price as compared to a similar object which had never had such defects. When the defect, after repair, still reduces the market price below that which it would have been had no defect and subsequent repairs occurred, the good faith seller is liable therefor, and such an award is merely compensatory of the defect and not within the scope of damages as provided under C.C. Art. 2545.

Defendants’ second contention is that Arnold Construction Corporation who was made their third party warrantor, is an “indispensable party,” and any award rendered without it would be inequitable. Regardless of whether the entire controversy could have been more fully adjudicated had the third party demand been tried with the main demand, the failure to do so has no prejudicial effect on defendants’ rights against Arnold Construction. These circumstances pose no real issue of a failure to join an indispensible party, and defendants’ argument has no merit.

Furthermore, counsel for defendants agreed to a continuance of the trial on the exception of prescription filed by the third party defendant to a date later than the trial of the principal demand. He then proceeded to trial on the principal demand without objection.

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


text:
    Arthur Lee BOLES and Essie Mae Snow Boles, Plaintiffs-Appellants, v. Dwight PYBURN, Clerk of Court, Defendant-Appellee.
    No. 13459.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Mecom, Scott & Woods by Leroy H. Scott, Jr., Shreveport, for plaintiffs-appellants.
    Dwight D. Pyburn, in pro. per.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

In a mandamus action, the lower court required plaintiffs to post $10,000 security as a prerequisite to ordering the defendant, as Recorder of Mortgages, to cancel the inscription of $10,000 collateral real estate mortgage executed by plaintiffs to the order of Future Holder.

Plaintiffs complain that the lower court erred in imposing an “unreasonable” requirement on plaintiffs because sworn affidavits and testimony clearly showed the mortgage note had been marked paid by the original holder and was thereafter lost or misplaced and that in the event the note did fall into the hands of another holder, such a holder would not be a holder in due course because his holding would have arisen after the date of execution of the note.

Under similar circumstances, the inscription of a collateral mortgage was ordered canceled without requiring security when evidence was presented to show the note had been marked paid and was thereafter lost or misplaced by the nominal payee. A pledgee of the mortgage note, however, succeeded in having the mortgage declared valid and enforceable against a defendant who purchased the property after the inscription of the mortgage had been canceled. See National Acceptance Company of America v. Wallace, 194 So.2d 194 (La. App. 2d Cir. 1967). See also State v. Hickey, 213 La. 966, 36 So.2d 5 (1948).

In Hickey, supra, it was observed that the .Recorder of Mortgages may be liable in damages for his cancellation of a mortgage where the mortgage note is not presented for payment in accordance with L.R.S. 9:5167. The court noted that security need not be demanded where it is shown either that the note has been destroyed or that the note has been lost by the maker after it has been marked paid by the record owner and returned to the maker. Here the lower court did not find that the original holder marked the note paid and returned it to the maker. At best, the evidence shows that the note was lost or misplaced while actually or constructively in the hands of the original holder.

Likewise, where a mortgage note is for a true collateral purpose and is negotiable on its face, the mere return of the note to the maker does not cancel the effect of the inscription of the collateral mortgage or destroy the note’s future negotiability. See Hammond State Bank & Trust Co. v. Broderick, 179 La. 693, 154 So. 739 (1934); Nathan and Marshall, “The Collateral Mortgage,” 33 La. Law Review 497; Levy v. Ford, 41 La.Ann. 873, 6 So. 671 (1889).

We find no error in the Recorder of Mortgages demanding, or in the lower court requiring, the plaintiffs to post security as a prerequisite to ordering cancellation of the mortgage inscription under the circumstances presented.

At appellants’ cost, judgment is

AFFIRMED.


author: HALL, Judge.

text:
    Leona SAUNDERS and Ottis Saunders, Plaintiffs-Appellants, v. T. G. & Y. STORES COMPANY et al., Defendants-Appellees.
    No. 13461.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.

      Maynard E. Cush, Shreveport, for plaintiff s-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer and Jack E. Carlisle, Jr., Shreveport, for T. G. & Y. Stores Co. and P. E. Jones.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This appeal is from a judgment rendered in accordance with a jury verdict rejecting plaintiffs’ demands for damages resulting from an injury sustained by Mrs. Saunders allegedly caused by “illegal and unreasonable force” used by a T. G. & Y. Store co-manager in a shoplifting incident. On appeal, plaintiffs urge that the trial court erred in instructing the jury on negligence and contributory negligence, which instructions were not applicable to this case because it involves an intentional tort, and in failing to give certain special instructions requested by plaintiffs relating specifically to an action based on the use of unreasonable force. Plaintiffs urge that because of the improper instructions this court should disregard the jury verdict and find for the plaintiffs.

Charging the jury on negligence and contributory negligence may not have been appropriate in this case involving an alleged intentional tort and in which contributory negligence was not pled by the defendants. Nevertheless, the trial court did instruct the jury on the general fault article of the Civil Code, LSA-C.C. Art. 2315, and the court’s instruction on negligence and contributory negligence expressed principles of fault, reasonableness, and duty which provided an adequate legal framework within which the jury considered the case. The trial court further correctly instructed the jury as to Article 215 of the Code of Criminal Procedure which provides that a merchant or a specifically authorized employee of a merchant may use reasonable force to detain a person for questioning on the merchant’s premises for a length of time not to exceed sixty minutes when he has reasonable cause to believe the person has committed a theft of goods held for sale by the merchant. The special charges requested by plaintiffs correctly stated principles of law applicable to this case but we do not consider the refusal of the trial court to give these charges, in view of the general instructions given, to have been seriously prejudicial to the plaintiffs.

Even if the jury’s verdict is disregarded and the appeal adjudicated on an independent review of the evidence by this court, Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), the evidence clearly preponderates that the force used by the store manager in attempting to detain plaintiff was reasonable and commensurate with the force used by plaintiff in her efforts to avoid detention.

Plaintiff admitted stealing several items of merchandise which she concealed in her purse and did not pay for when she passed through the check-out counter of the store. When the manager approached plaintiff outside of the store, plaintiff, a large woman, panicked (according to her own testimony), dropped the purse to the pavement spilling some of the stolen merchandise, hit the manager in the face, and ran off. The manager chased her across the parking lot catching up with her several times but being unable to hold her. The manager chased plaintiff across a street and when plaintiff fell to the ground in the yard of a residence the manager handcuffed her. Plaintiff broke a bone in her elbow when she fell to the ground. The manager took plaintiff back to the store and detained her in the store’s office until the police arrived a few minutes later. The plaintiff subsequently pleaded guilty and was sentenced on a charge of theft.

Plaintiff’s version of the use of unreasonable force by the manager is supported by the testimony of her daughter but the manager’s version of what occurred is supported by the testimony of several other witnesses.

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

Affirmed.


author: SMITH, Presiding Justice,

text:
    Arthur L. STEVENSON v. STATE of Mississippi.
    No. 50123.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    James E. Winfield, Vicksburg, R. Jess Brown, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Arthur Lee Stevenson was convicted of the capital murder of a police officer under the provisions of Mississippi Code Annotated section 97-3-19(2)(a) (Supp.1974), and was sentenced to death. Since the case was tried before Jackson v. State, 337 So.2d 1242 (Miss.1976), his conviction and sentence must be reversed and the cause retried in accordance with the opinion in Jackson v. State, supra.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.